Journal of Civil Rights and Economic Development
Volume 16
Issue 2 Volume 16, Spring/Summer 2002, Issue 2
Article 10
March 2002
Temporary Workers Allowed to Join the Unions: A
Critical Analysis of the Impact of the M.B. Sturgis
Decision
Joy Vaccaro
Follow this and additional works at: http://scholarship.law.stjohns.edu/jcred
Recommended Citation
Vaccaro, Joy (2002) "Temporary Workers Allowed to Join the Unions: A Critical Analysis of the Impact of the M.B. Sturgis Decision,"
Journal of Civil Rights and Economic Development: Vol. 16: Iss. 2, Article 10.
Available at: http://scholarship.law.stjohns.edu/jcred/vol16/iss2/10
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TEMPORARY WORKERS ALLOWED TO JOIN
THE UNIONS:
A CRITICAL ANALYSIS OF THE IMPACT OF
MB. STURGISDECISION
JOY VACCARO
INTRODUCTION
Temporary workers compose a large segment of our nation's
workforce. These workers, who are often referred to as contingent
workers, do the same work as their permanent counterparts
without reaping the same benefits. On August 25, 2000 in MB.
Sturgis, Inc., the National Labor Relations Board (NLRB)
allowed joint employees to be included for representational
purposes in a bargaining unit with employees solely employed by
the user, without consent of the user and supplier employers.
Joint employees are employed by both the user and supplier
employer. This ruling overruled Lee Hospita, which required
the consent of their joint employers for temporary workers to
unionize. This case highlights the ongoing changes in the
American workforce and workplace. There has been significant
growth in joint employers' arrangements, including the increased
use of companies that specialize in supplying temporary workers
to augment their work force.
Part I of this Note discusses the current law for temporary
workers. The recent decision in Sturgis extended the right for
temporary workers to become unionized without consent of their
joint employers. The Board overruled precedent due to the
changing structure of the American workforce. In order for
temporary workers to have the protections of the NLRA, the
ST JOHN'SJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
Board must assess two factors: (1) whether they have joint
employers' status; and (2) whether this particular multi-employer
unit is conducive in accordance with Rule 9(b) through the
community of interest analysis. Part II will discuss and outline
the statutory inconsistencies and lack of practicality arguments
that have been pointed to since the outcome of this decision.
Some of these arguments are well grounded while others can be
easily dismissed. Part III will conclude that the Court of Appeals
should overall adopt the decision in Sturgis. Further, some
solutions and suggestions will be offered to invalidate some of the
loopholes in this current decision.
I.
THE PRESENT DAY LAW FOR TEMPORARY EMPLOYEES
A. Landmark Decisions
Temporary employees have been addressed in three landmark
NLRBI decisions: Greenhoot in 1973;2 seventeen years later in
Lee Hospital;3 and in August of 2000 in Sturgis.4 In 1973, the
Board 5 determined that a multi-employer unit needs consent of
I See
The
N.L.R.B.:
What
it
is,
What
it
does,
at
httpl/
www.N.L.R.B..govpublications/vhatitis.htm, Jun. 2, 2002 (defining N.L.R.B. as
independent Federal agency created in 1935 by Congress to administer National Labor
Relations Act, which is basic law governing relations between labor unions and employers
whose operations affect commerce, and finding that purpose of Board is to assure free
choice and encourage collective bargaining); see also Compensation Resources, REP. ON
HOURLY COMPENSATION, Jan. 2001, at 8 (noting that Board can petition court on behalf of
workers); Pace InternationalUnion HailsNationalLabor Relations BoardAdministrative
Law Judge Decision That Faults Cellu Tissue Bad Faith Bargainingat New York Mil,
PUERTO RIco NEWSWIRE, Dec. 21, 2000 (finding that in bad faith bargaining decision
N.L.R.B. is recommended to revoke any discipline that was imposed under bargaining and
to pay backpay to employees harmed by company's unilateral change); Temps Are
Entitled to OrganizingRights, ENG'G NEWS REC., Sept. 11, 2000, at 100 (asserting that
most Board decisions result in confusion).
2 205 N.L.R.B. 250 (1973).
3 300 N.L.R.B. 947 (1990).
4 2000 N.L.R.B. LEXIS 546 (Aug. 25, 2000).
5 See The N.L.R.B.: What it is, What it does, supra note 1 (stating that Board has five
members performing their formal function of administrative proceedings and observing
that President of United States appoints Board members for five-year term, with consent
of Senate); see also Richard Lapp, A Call for a Simpler Approach: Examining the NLRA's
Section 106y) Standard,3 U. PA. J. LAB. & EMP. L. 251, 259 (2001) (stating that Board
must petition for injunctive relief to stop certain union abuses); Anthony Ramirez, Metro
BrieFmg,N.Y. TIMES, Feb. 12, 2001, at B4 (finding that N.L.R.B. has review process for
administrative judge's decision, which consists of three-member Board panel); UFCW
Labor Board Orders Smithffeld to Bargain with Union, U.S. NEWSWIRE, Feb. 8, 2001
(stating that Board has power to order bargaining agreements with workers'
representative when anti-union tactics are used).
2002]
TEMPORARY WORKERSALLOTWED TO JOINThE UNIONS
the affected employers before forming a union.6 In 1990, the
Board in Lee Hospital extended the definition of multi-employer
defined in Greenhoot, while still requiring both employers'
consent when a union seeks to represent a single user 7 employer
who is solely a multi-employer in nature and obtains employees
from one or more supplier 8 employers. 9
In the Board's most recent decision, Sturgis, the NLRB
addressed the necessary circumstances where an employee can
be included for representational purposes in a collective
bargaining unit.10 While the 3-1 Board majority consisted of
6 See Greenhoo, 205 N.L.R.B. at 251 (holding there is no legal basis for two or more
separate user employers to be bound by negotiations of union without their consent); see
also Sturgis, 2000 N.L.R.B. LEXIS 546, at *30 (quoting Greenhootlanguage that "there is
no legal basis for establishing a multi-employer unit absent showing that several
employers have expressly conferred on joint bargaining agent power to bind them in
negotiations or.. ." manifested consent through conduct); Lee Hosp., 300 N.L.R.B. at 950
(finding that AAI was not joint employer because Lee Hospital set non-negotiable
reimbursement amount owed to them by AAI); Kenneth R. Dolin & Scott V. Rozmus,
Temporary Workers: N.L.R.B. Trend of Easing Union- OrganizingActivities Continues,
EMP. L. STRATEGIST, Jan. 2001, at 1 (stating that in order to establish multi- employer
bargaining unit, several employers must clearly manifest desire to be bound to future
collective bargaining).
7 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *10 (defining "user" as employer whose
company uses those employees); see also Dolin & Rozmus, supra note 6, at 1 (noting that
additional temporary employees could increase user employer's labor cost as well as limit
operating flexibility); Michael Joe, N.L.R.B. Eases the Way for Temp Workers to
Organize, LEGAL INTELLIGENCER, Sept. 18, 2000 at 4 (claiming that in multi-employer
situations, user company is one of several parties that must agree to contract). See
generally Temps Are Entitled to OrganizingRa'ghts, supra note 1, at 100 (stating that
1990 decision seemed to protect employers more than workers).
8 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *10 (defining "supplier" employer as
company that supplies employees); Perkins Cole, N.L.R.B. Lumps Temps with Regular
Workers, ALASKA EMP. L. LETTER, Dec. 2000 (stating that temporary agency is example of
supplier employer); see also Joe, supra note 7, at 4 (determining temporary employees
who have been hired from more than one temp agency could not be represented by union);
Temps Are Entitled to Organizing l?'ghts, supra note 1, at 100 (understanding that
"[temp agencies in construction crafts mostly supply the nonunion segment of the
industry").
9 See Lee Hosp., 300 N.L.R.B. at 949-50 (holding that unit of Certified Registered
Nurse
Anesthetists (CRNA) did not constitute multi-employer bargaining and finding that
CRNA could not be set apart from other hospital professionals, thereby not qualifying
them as jointly employed); see also Sturgis, 2000 N.L.R.B. LEXIS, at *33 (finding that
CRNA units were not considered jointly employed when "disparity of interest" test was
applied); Legal Insights, HRFOcuS, Nov. 2000, at 2 (asserting that consent from all
affected employers must be obtained in order to be legally recognized); Temps Are
Entitled to OrganizingRights, supranote 1, at 100 (recognizing that under Lee Hospital,
temporary employees as well as user-employer must consent to be part of multi-employer
bargaining unit).
10 See 29 U.S.C.S. § 159(b) (Law. Co-op. 2000) (noting that to assure employees fullest
freedom in exercising rights guaranteed by this Act, units appropriate for purposes of
collective bargaining shall be employer unit, craft unit, plant unit or subdivision thereof);
see also Dolin & Rozmus, supra note 6, at 1 (describing difference between multi-
STJOHN'SJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
Chairman Truesdale and Members Fox and Leibman, Member
Brame's dissent was longer than the majority opinion."I Member
Hurtgen excused himself.12 Overall, the Board held, "that a unit
composed of employees who are jointly employed by a user
employer and a supplier employer, and employees who are solely
employed by the user employer, is permissible under the state
without the consent of the employers."13 As a result, temporary
employees will be free to organize in three ways not previously
available: (1) as part of a unit of employees of a single user
employer also including the employer's "solely employed"
employees; (2) as a separate unit of employees of a single supplier
employer supplied to a single user employer; and (3) as part of
unit of all of a single supplier employer's employees supplied to
user employers. 14
employer unit and "employer unit" as provided in § 9(b)). See generally Pitney, Hardin,
Kipp
& Szuch LLP, Invalid Withdrawal Leaves Company Bound to Bargaining
Agreement N.J. EMP. L. LETTER, Feb. 2000 (finding under § 9(a) there are three ways
employer can withdraw from multi-employer bargaining unit); A Guide to Basic Law and
Procedures
under
the
National
Labor
Relations
Act,
at
http://www.N.L.R.B..gov/publ'cations/basicguide.htmJ (discussing § 9(b) employee
representative in detail).
11 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *59 (dissenting opinion) (finding that
requirement of multi-employer bargaining units is impermissible under Act); Dolin &
Rozmus, supra note 6, at 1 (claiming one problem with majority's decision was potential
conflicts of interest among various employers); John P. Furfaro & Maury B. Josephson,
Bargaining Units for Temporary Workers, N.Y.L.J., Oct. 6, 2000, at 3 (highlighting
Brame's dissent which rejected idea that large number of "employees suffer the effective
loss of representation rights guaranteed by the Act"). See generally Stanley S. Arkin,
Trends New Obstacle to Corp. InternalInvestigation,Bus. CRIMEs L. REP., Jan. 2001, at
1 (noting that Member Brame believed that nonunion employers were burdened by
having to allow employee representative to be present during investigatory meeting).
12 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *9 (taking no part in decision); Dolin &
Rozmus, supra note 6, at 1 (noting that Hurtgen did not participate in case); Eric
Rosenfeld, N.L.R.B. Restores RepresentationRi'hts to Temps, N.Y.L.J., Sept. 25, 2000, at
1 (finding that Member Hurtgen disqualified himself from case). But see Arkin, supra
note 11, at 1 (explaining that Member Hurtgen dissented in allowing union representative
to be present during investigatory meeting because it added another cause of action in
workplace).
13 Sturgis, 2000 N.L.R.B. LEXIS 546, at *36-37 (explaining logic and precedent of
describing 'employer-unit' as unit of all of the user's employees, both those solely
employed by the user and those jointly employed by the user and the supplier); see also
Dolin & Rozmus, supra note 6, at 1 (asserting Sturgis decision enhanced risk of unions
accreting temporary employees to existing units of employees solely employed by user
employers); Joe, supra note 7, at 4 (finding no consent is needed when bargaining unit is
made up of employees who are employed by both user and supplier employers and
employees who are only employed by user employer); Legal Insights, supra note 9, at 4
(observing that "community of interest" test which determines whether unit is
appropriate or not, looks for mutual interest in hours and wages of employees involved).
14 See Rosenfeld, supranote 12, at 1 (summarizing three ways unions are now able to
organize); see also Joe, supra note 7, at 4 (observing Sturgis decision allows temporary
workers hired by one company from variety of temp agencies to unite with permanent
employees of that company, and together they can fight for better benefits); Maudlyne
2002]
TEMPORARY WORKERSALLOWED TO JOIN THE UNIONS
B. JointEmployer Status
When a unit that combines jointly and solely employed workers
of a single user employer desires a collective bargaining
agreement, the unit must be considered a joint employer.S It is
well settled in the courts and through the Board's decision, that
two or more firms can be joint employers of the same employees
if they each exert significant control over the employees.1 6 The
standard for determining the status of joint employer, which is
accepted in our court system, is referred to as the "right of
control" test. 17
The "right of control test" is a factual inquiry based on direct
control and whether the employer "exercised substantial day-today control over referred employees."18 The following factors are
Ihejirika, Riding to the Rescue; Polticians,Labor Leaders Rush to Aid Temps, But Not
Everyone Thinks They Need Saving, Cmu. TR1B., Dec. 31, 2000, at C16 (reasoning that
allowing temporary workers to join bargaining unit gives temps stronger, more effective
voice at workplace). But see Moon, Moss, McGill, Hayes & Shapiro, P.A., N.L.R.B. Opens
Door to Union Organizing by Temporary Workers, ME. EMP. L. LErER, Oct. 2000
(finding adverse effects in allowing temporary workers to join established bargaining
because regular employees' interest are significantly different from those of temporary
employees).
15 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *18 (stating first matter that needs
addressing is joint employer, otherwise, issue in Sturgis would be moot); see also Legal
Insights, supra note 9, at 2 (noting that temporary and regular employees may belong to
same union unit when temporary employees are co-employed by temp agency and
company). See generally Skoler, Abbott, & Presser, Employer, Parent Company Both
Found Liable for Termination, MASS. EMP'. L. LETTER, Dec. 2000 (finding that joint
employer is one where employee's conditions are regulated by more than single employer
and recognizing each employer may be held liable for acts of others); U.S. District Court
LaborLaw - Remedies-UnfairPractice,N.J.L.J., Jan. 15, 2001 (claiming that when "two
entities share... essential matters of employment, both are joint employers").
16 See Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964) (reaffu ming qualification
as joint-employer mandates that requisite degree of control over employee be shown);
N.L.R.B. v. Brown-Ferris Indus., 691 F.2d 1117, 1124 (3d Cir. 1982) (stating when two or
more employers have significant control over same employees, it constitutes joint
employer in accordance with NLRA); see also N. Am. Soccer League v. N.L.R.B., 613 F.2d
1379, 1381 (1980) (mentioning that when employer exerts sufficient control over
employees of its franchises or member employers, he is considered joint employer).
17 See Brown-Ferris Indus., 691 F.2d 1117 at 1123 (quoting N.L.R.B. v. Condenser
Corp. of Am., 128 F.2d 67, 72 (3d Cir. 1942) (stating that "it is.. .a matter of determining
which of two, or whether both, respondents control, in the capacity of employer, the labor
relations of a given group of workers"); see also Greyhound Corp., 376 U.S. at 481
(reaffuming control test and stating that determination is factual issue); Lutheran
Welfare Servs. of Ill. v. N.L.R.B., 607 F.2d 777, 778 (7th Cir. 1979) (determining
established standard for joint employer status as two or more employers exerting
significant control over same employees).
18 N.L.R.B. v. W. Temp. Servs., Inc., 821 F.2d 1258, 1267 (7th Cir. 1987) (quoting
Carrier Corp. v. N.L.R.B., 768 F.2d 778, 781 (6th Cir. 1985)); see also N.L.R.B. v. United
Ins. Co. of Am., 309 U.S. 254, 256-60 (1968) (acknowledging Board's task was to apply
common law principles of agency which was not entirely factual finding by Board but
involved also applying law to facts of case ); Pulitzer Publ'g Co. v. N.L.R.B., 618 F.2d
ST JOHN'SJOURNAL OFLEGAL COMIENTARY
[Vol. 16:489
taken into consideration by the courts when determining
whether the user should be considered a joint employer: (1) daily
supervision of employees by the user employer; (2) the user
employer's discretion to hire and fire employees; (3) the user
employer's designation of work rules and conditions; (4) the user
employer's formulation of work instructions and work
assignments; (5) the user employer's right to refuse a "referred
employee;" and (6) the method of employee compensation. 19
As a result, workers who are not under the direct control of the
firm that compensates them will not be considered employees of
the joint employer, regardless of their importance. 20 In some
respects, an employer can easily manipulate this system by
giving extra delegation of authority and carefully structuring
compensation to exclude workers whose mobility makes direct
supervision unfeasible from the Act's coverage. 2 1 These small
alterations by employers have changed the classification of joint
employer to independent contractor. 2 2 The use of an employee
supplier agency and subcontracting of supervisory authority over
workers has denied an increasing number of American workers
protections under the NLRA.23 Still, a court can counter this
1275, 1278-79 (8th Cir. 1980) (applying joint-employer test).
19 See Pulitzer, 618 F.2d at 1278-79 (noting factors used in determining joint
employer status in Parklane Hosiery Co., Inc., 203 N.L.R.B. 597, 612 (1973)); see also
Laerco Transp. & Warehouse, 269 N.L.R.B. 324, 325 (1984) (concluding upon application
of test that employer did not possess sufficient control over employee); Bita Rahebi,
Comment, Rethinking the National Labor Relations Board's Treatment of Temporary
Workers: Granting GreaterAccess to Unionization, 47 UCLA L. REV. 1105, 1117 (2000)
(reasoning right of control test employed by courts allows too much leeway for employers
to avoid finding of joint employee status).
20 See Laero,269 N.L.R.B. at 325 (finding insufficient supervision over employees to
meet standard); Hilton Int'l Co. v. N.L.R.B., 690 F.2d 318, 322 (2d Cir. 1982) (concluding
that direct control did not exist in this case); see also Rahebi, supra note 19, at 1115-22
(discussing three different types of standards to determine joint employers: right of
control test, economic realties test and hybrid standard).
21 See Michael C. Harper, Defining the Economic Relationship Appropriate for
Collective Bargaining,39 B.C. L. REV. 329, 334-35 (1998) (highlighting problems of right
of control test); see also Jonathan P. Hiatt, PolicyIssues Concerningthe Contingent Work
Force, 52 WASH. & LEE L. REV. 739, 747 (1995) (claiming right-of-control test allows
company to shield themselves from legal responsibility through contractor maintaining
thin level of supervision over employees).
22 See generally29 U.S.C. § 152 (2000); Hilton, 690 F.2d at 320 (noting that 29 U.S.C.
§ 152(3) excludes independent contractors under definition of "employee"); Harper, supra
note 21, at 334 (explaining common law distinction between employees and independent
contractors developed out of tort law and determining vicarious liability).
23 See Am. Publ'g Co. of Mich., 308 N.L.R.B. 563, 564-65 (1992) (showing publisher
can exclude newspaper deliverers from Act's coverage merely by giving deliverers control
over their own routes including ability to hire and fire assistants); Daily Mining Gazette,
273 N.L.R.B. 350, 352 (1984) (stating that drivers for newspaper are considered
2002]
TEMPORARY WORKERSALLOWED TO JOINTHE UNIONS
manipulation by not rigidly applying the standard and instead
looking beyond the first factor only, and considering all the other
24
factors.
Employers have advantages and disadvantages in seeking joint
employer determination. 25 If an employer has a joint employer
status, the employer cannot gain the advantages of protection
from secondary boycotts under section 8(b)(4)26. This statute
prohibits a union from placing economic pressures on a neutral
employer.27 Until the Sturgis decision, a union could not organize
without the consent of joint employers. 28 As a result, prior to this
decision the employer had the ability to determine their NLRA
jurisdiction. 29 This decision takes away the veto power of an
employer and leaves the decision to unionize for the Board. 30
independent contractors based on factors including freedom to run their routes in any
order they choose); see also M.B. Sturgis, Inc., 2000 N.L.R.B. LEXIS 546, *40 (Aug. 25,
2000) (explaining rationale in overruling Lee Hospital).
24 See N.L.R.B. v. United Ins. Co. of Am., 390 U.S. 254, 258-60 (1968) (taking into
consideration only two or three factors). But see Zarnoski v. Hearst Bus.
Communications, Inc., 1996 U.S. Dist. LEXIS 181, at *25-29 (E.D. Pa. Jan. 11, 1996)
(applying all factors and concluding that joint employer status did not exist).
25 See Rahebi, supra note 19, at 1115-16 (outlining advantages and disadvantages of
N.L.R.B. finding joint employer status); Charles P. Sabatino & Dr. Simi Litvak, Liability
Issues Affecting Consumer-Directed Personal Assistance Services - Report and
Recommendations, 4 ELDER L.J. 247, 290-91 (1996) (explaining advantages and
disadvantages of joint employer status under workers' compensation law).
26 See 29 U.S.C.S. § 158(8)(b)(4) (Law. Co-op. 2002). See generallyNATIONAL LABOR
RELATIONS BOARD, A GUIDE TO BASIC LAW AND PROCEDURES UNDER THE NATIONAL LABOR
RELATIONS
AcT 23-32
(U.S.
Gov't
Printing Office
1997),
available at
http://www.N.L.R.B..gov/publications/basicguide.html (outlining unfair practices of labor
organizations); Rahebi, supra note 19, at 1119-21 (suggesting that hybrid test must be
utilized to properly assess when entity is employer under definitions of Act).
27 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *96 (Brame, J. Robert dissenting in part)
(arguing Congress clearly intended to prohibit unions from forcing either employers or
self-employed persons to join labor or employer organization"); see also Rahebi supra note
19, at 1115-16 (illustrating dilemma of employers when deciding whether they want to be
joint employers; while this quashes union organization efforts, employers still hope to
retain protections of neutral-employer status).
28 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *34 (explaining requirement of joint
consent of both employers since Lee Hospital ruling); see also Hexacomb Corp., 313
N.L.R.B. 983, 983 (1994) (noting that neither party expressed consent to multi-employer
bargaining); Int'l Transfer of Florida, Inc., 305 N.L.R.B. 150, 151 (1991) (stating party's
challenge is clear indication that consent was never given).
29 See Sturgis,2000 N.L.R.B. LEXIS 546, at *3 (stating that employees who were part
of "contingent work force" were previously denied their rightful representation
guaranteed under National Labor Relations Act); see also Greenhoot, Inc., 205 N.L.R.B.
250, *7-8 (1973) (proclaiming consent of joint employers is required for purposes of
collective bargaining).
30 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *35 (stating determination of
appropriateness of union units, for collective bargaining purposes, is governed by
community of interest analysis); see also, N.L.R.B. v. Action Automotive, Inc., 469 U.S.
490, 494 (1985) (noting Board's discretion in this area); Trs. of the Masonic Hall & Asylum
Fund v. N.L.R.B., 699 F.2d 626, 632-33 (2d Cir. 1983) (articulating standard and
ST JOHNSJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
C. Community of InterestAnalysis
After the Board determines that the relationship constitutes
joint employer status, the next step is to determine whether the
joint employers share a community of interest. 3 1 The community
of interest test serves to protect the interest of both employees
and employers.32 It was Congress' intent to provide a workable
framework for stable collective bargaining relationships, even if
this involves a conflict of interest. 33 Section 9(b) of the National
Labor Relations Act provides a framework for deciding whether a
unit is appropriate by stating that "the Board shall decide in
each case whether, in order to assure to employees the fullest
freedom in exercising the rights guaranteed by this Act, the unit
appropriate for the purposes of collective bargaining shall be the
employer unit, craft unit, plant unit or subdivision thereof."34
The community of interest is satisfied if the collective
bargaining is effective and protective of the proper employees'
interests. 35 In Action Automotive, Inc., the Board eloquently
reviewing decisions of other circuits).
31 See 29 U.S.C. § 159(a) (2000) (stating group of employees working side by side at
same facility, under same supervision and common working conditions, is likely to share
sufficient community of interest to constitute appropriate unit). See generally Christine
G. Cooper & Nancy J. Brent, The Nursing Profession and the Right to Separate
Representation, 58 CHI.-KENT L. REV. 1053, 1059-64, 1067-77 (1982) (discussing
bargaining units and community of interest standard); Robert A. McCormick, Union
Representativesas CorporateDirectors: The Challenge to The Adversial Model ofLabor
Relations, 15 U. MICH. J.L. REFORM, 219, 229-30, 257 (1982) (discussing bargaining
units). But see Berea Publ'g Co., 140 N.L.R.B. 516, 519 (1963) (holding employees having
different employment terms and conditions from other employees working for same
employer are not necessarily precluded from unit).
32 See Sturgis,2000 N.L.R.B. LEXIS 546, at *42 (rationalizing community of interest
standard may not always be appropriate, therefore status should be determined based on
particular circumstances using Board's traditional analysis); see also Globe DiscountCity,
209 N.L.R.B. at 214 (concluding jointly employed employees had "community of interest"
with solely employed employees); Kalamazoo Paper Box Corp., 136 N.L.R.B. at 137
(determining predominant 'community of interest" standard). But cf Rosenfeld, supra
note 12, at 1 (criticizing Board's community of interest analysis because it was neither
designated nor had been used to determine placement of supplied employees, since it only
'compares apples (solely employed employees) to apples, whereas supplied employees are
oranges").
33 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *59-60 (Brame, Member, dissenting)
(arguing employers may not be coerced into participation in multi-employer bargaining)
(emphasis added); see also Lee Hosp., 300 N.L.R.B. 947, 948 (1990) (holding employers'
consent is required before Board will include their employees in same unit with other
employers' employees); Greenhoot, Inc., 205 N.L.R.B. 250, 251 (1973) (holding that joint
employer unit will not be established unless several employers have expressly consented
to joint bargaining agent power to negotiate on their behalf).
34 29 U.S.C. § 159(b) (2000).
35 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *99-100 (Brame, Member, dissenting)
(stating basic requirement entails that negotiations only take place with those grouping of
2002]
TEMPORARY WORKERS ALLOWED TO JOIN THE UNIONS
497
defined this requirement, as "[a] cohesive unit - - one relatively
free of conflicts of interests - - serves the Act's purpose of effective
collective bargaining,.., and prevents a minority interest from
being submerged in an overly large unit."36 There are a number
of factors the Board takes into consideration when determining
whether community of interest is present with the employees
seeking representation. 37 In Kalamazoo Paper Box Corp., the
Board listed seven factors, including a difference in method of
wages or compensations, different hours of work, different
employment benefits, and separate supervision to name a
39
few. 3 8This, however, is not an automatic decision.
If the Board determines that these employers have a joint
employees where effective bargaining will occur which protects employee interest); see
also Allied Chem. v. Pittsburgh Plate Glass Co., 404 U.S. 157, 172-73 (1971) (opining
National Labor Relations Act prevents minority interest group from being submerged in
"overly large unit"); Pittsburgh Plate Glass Co. v. N.L.R.B., 313 U.S. 146, 165 (1941)
(concluding cohesive unit serves National Labor Relations Act's purpose of effective
collective bargaining). See generally Frisch's Big Boy Ill-Mar, Inc., 147 N.L.R.B. 551,
551n.1 (1964) (developing presumption that single employer location is appropriate for
community of interest test).
36 See N.L.R.B. v. Action Auto., Inc., 469 U.S. 490, 494, (1985) (citing PittsburghPlate
Glass and Allied Chem.); See, e.g., Kalamazoo, 136 N.L.R.B. at 137 (listing factors which
warranted consideration in determining existence of substantial differences in interest
and working conditions).
37 See Stufgis, 2000 N.L.R.B. LEXIS 546, at *100 (Brame, Member, dissenting)
(detailing factors taken into consideration to determine whether community of interest
exists); see also Sturgis, 2000 N.L.R.B. at *41 (stating group of employees under same
employer, working together at same place under same boss and conditions, is likely to
share appropriate community of interest); Globe Discount City, 209 N.L.R.B. at 214
(deciding "community of interest" existed); Kalamazoo, 136 N.L.R.B. at 138 (agreeing with
Sturgis on "community of interest" standard). But cf Rosenfeld supra note 12, at 1
(disagreeing with National Labor Relations Board's community of interest analysis).
38 See Kalamazoo, 136 N.L.R.B. at 137 (positing following factors used in determining
existence of substantial differences in interest and working conditions, which include: "a
difference in method of wages or compensation; different hours of work; different
employment benefits; separate supervision; the degree of dissimilar qualifications,
training, and skills."). See generallyHarper, supra note 21, at 334-35 (discussing right of
control test); Hiatt, supra note 21, at 747 (arguing right of control test allows company to
shield itself from legal responsibility); Rahebi, supra note 19, at 1117 (listing factors
courts take into consideration when determining whether user should be considered joint
employer).
39 See S. Prairie Constr. Co. v. Int'l Union of Operating Eng'rs, 425 U.S. 800, 805
(1976) (per curium) (deferring to Board's discretion in applying standard by stating that
such decision is "rarely to be disturbed"); N.L.R.B. v. Food Store Employees Union, 417
U.S. 1, 9 (1974) (concluding guiding principle of administrative law is that administrative
agencies are not foreclosed from enforcing legislative policy committed to its charge, even
after error has been corrected by judicial review); FPC v. Idaho Power Co., 344 U.S. 17, 20
(1952) ( stating "[tihe guiding principle, violated here, is that the function of the reviewing
court ends when an error of law is laid bare.") (emphasis added); Packard Motor Car Co.
v. N.L.R.B., 330 U.S. 485, 491 (1947) (noting because determination of unit of
representation was not unreasonable or arbitrary as to surpass Board's power, court's
power ended).
STJO-N'SJOURAL OFLEGAL COMMENTARY
(Vol. 16:489
employer relationship, which is satisfactory under the
community of interest analysis the courts normally uphold it.40
At this point the temporary employees may attain the benefit of
the Stuwgis decision. These workers can begin the negotiation
process for a collective bargaining agreement with their
prospective unions without consent of either employer. 4 1
D. Sturgis Decision
The Board asked Petitioners 4 2 in October, 1996, to address
issues raised by Greenhoot and Lee Hospitaland clarify the test
for determining joint employer status. 4 3 The first Petitioner, M.B.
Sturgis, Inc., involved Local 108 who filed a petition to represent
"all employees" at a plant that produces and sells flexible gas
hoses. 44 Sturgis employs thirty-five employees and uses ten to
fifteen temporary employees who are supplied by Interim, a
national provider of temporary help personnel. 4 5 The temporary
workers work side by side with Sturgis' employees, performing
40 See Action Auto v. N.L.R.B., 469 U.S. 490, 494 (1985) (explaining it is well settled
in case law and accepted by courts that Board has authority to define collective
bargaining units); S. Prairie Constr. Co., 425 U.S. at 805 (reflecting Board's wide
discretion in this area ); N.L.R.B. v. Hearst Publ'ns, Inc., 322 U.S. 111, 134 (1944) (stating
Congress has recognized Board's need for "flexibility in shaping the[bargaining] unit to
the particular case."). But see Sturgis,2000 N.L.R.B. LEXIS 546, at *42 (highlighting not
every unit combining jointly employed and solely employed employees of a single user
employer will be found appropriate).
41 See PMR Legal News Briefs, PAYROLL MANAGER'S REP., Jan. 2001 (summarizing
Board's ruling). See generally Timothy Egan, A Temporary Force to Be Reckoned with;
Wanted: High- Tech 'Hired Guns' and Agencies To Provide Them, N.Y. TIMES, May 20,
1996, at D8 (discussing high-tech temporary workers); Stephen Greenhouse, Labor Board
Makes Joining Union Easier for Temp Staff, N.Y. TIMES, Aug. 31, 2000, at A16 (reporting
enthusiasm from labor side); Reuters, Labor Board Cites AT&T, N.Y. TIMES, Oct. 8, 1992,
at D8 (relating accusation of National Labor Relations Board that AT&T violated both
Federal labor law and its contract with Communications Workers of America by hiring
temporary workers from employment agencies for long-term positions).
42 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *7-9 (explaining although there were
originally three petitioners, one withdrew petition after oral arguments, and therefore
case is no longer pending before Board).
43 See Sturgis at *8 (showing both parties and several amici curiae argued issue of
appropriate test for joint employer status determination); see also Lee Hosp., 300
N.L.R.B. 947, 948 (1990) (holding Board will not include employees with different
employers in same unit without employers' consent); Greenhoot, Inc., 205 N.L.R.B. 250,
251 (1973) (finding that joint employer unit will not be established absent showing that
several employees have expressly granted joint bargaining agent power to negotiate on
their behalf).
44 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *10 (stating that unit of employees,
represented by Local 108 in case, worked at M.B. Sturgis plant located in Missouri).
45 See id. at *5 (claiming they were not notified of suit and Interim joined suit only
after Sturgis' request for review was granted).
2002]
TEMPORARY WORKERSALLO WED TO JOIN TE UNIONS
499
the same work and are subject to the same supervision.4 6 Interim
hires the temporaries, determines their wages and benefits and
pays their salaries. 47 All employees work the same hours, except
temporary employees who are not permitted to work more than
forty hours per week. 48 Sturgis consented to having these
temporary workers unionized, however, there is no evidence that
49
Interim consented to the inclusion of them.
The second petitioner, Jeffboat Division, is the user employer
that operates a large shipyard.50 TT&O is the supplier firm,
which supplies Jeffboat with thirty first class welders and
steamfitters. 5 1 Local 89 petitioned those employees to a unit of
600 production and maintenance employees covered by a
collective bargaining agreement between Jeffboat and Local 89.52
Jeffboat controls all aspects of the daily environment of the
temporary employees. 53 They also have authority to discipline the
temporary employees for unsatisfactory performance or
Jeffboat is also
infraction of the rules and regulations.5 4
responsible for monitoring the time temporary employees spend
on assignments. 55 The Regional Director56 found that Jeffboat
and TT&O were joint employers. 57 In addition, he found a strong
46 See id. (discussing similarities in duties between permanent and temporary
workers).
47 See id. at *10 (stating Interim's involvement in hiring and payment of temporary
workers).
48 See id. (analyzing differences between temporary and permanent workers).
49 See id. at *11 (stipulating that record contained no evidence that Interim consented
to temporary workers' inclusion).
50 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *12-13 (describing Jeffboat Division as
inland river shipbuilder, operating shipyard on Ohio River in Jefferson, Indiana).
51 See id. at *13 (discussing Jefbat's business activities and duties of temporary
workers).
52 See id. at *12 -13 (stating that Local 89 petitioned employees to unit covered by
collective bargaining agreement between Jeffboat and Local 89); see also Paul H. Derrick,
Unions Are Now Able to Organize Temporary Workers, 12 S.C. LAW. 14, 16 (2001)
(asserting in 1995, Local 89 petitioned for unit clarification, insisting temporary
employees constituted accretion to existing production and maintenance unit at shipyard).
53 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *13 (stating that Jeffboat's supervisors
"assign, direct, and oversee" TT&O supplied employees daily).
54 See id. at *13, *21 (stating Jeffboat supervisors have authority to discipline
supplied employees "as they see fit," including, but not limited to, written and verbal
warning and suspension).
55 See id. at *13 (noting Jeffboat monitored time TT&O employees spent on Jeffboat
assignments).
56 See id. at *6 (stating on November 8, 1995, it was Acting Regional Director for
Region 9 who dismissed unit clarification petition sought by Teamster Local 89 on behalf
of temporary employees at Jeffboat).
57 See id. at *13 (concluding Jeffboat exercises authority over daily work and has
STJOHN'SJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
community of interest between the temporary workers and their
permanent counterparts because both groups did the same
work. 58 Since neither Jeffboat nor TT&O consented, the Regional
Director could not force the two employers into collective
bargaining.5 9
In light of the common issues raised by these two cases, the
Board decided to consolidate both Petitions. 60 It should be noted,
however, that only one member of the Board, Member Fox (part
of the majority opinion), participated in the oral arguments and
this decision. 61 With regard to Petitioner Jeffboat, the Board
affirmed the Regional Director's decision of joint employer and
reverse the dismissal of the petition. 62 Although Jeffboat and
TT&O argued that TT&O was the sole employer of the temporary
workers, the Board decided that Jeffboat supervisors have
substantial authority over the temporary workers.63
The
authority to act for any sub par performance or infractions of rules and regulations by
temporary employees). See generally Derrick, supra note 52, at 16 (suggesting joint
employer status is fairly easy to satisfy because it only requires both employers to share
or co-determine matters governing essential terms of employment).
58 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *13 (concluding that Jeffboat exercises
authority over daily work and has authority to act for any sub par performance or
infractions of rules and regulations on temporary employees).
59 See id. at *13-14 (finding both Jeffboat and TT&O are joint employed employers
who have strong community of interest, but acting in accordance with Greenhootand Lee
Hospital, could not force joint bargaining); see also Rahebi, supra note 19, at 1129
(suggesting implied consent theory along with liberal joint employer hybrid test will
facilitate temporary workers organizing in user units).
60 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *8 (scheduling oral arguments on
October 4, 1996, requesting petitioners to address problems in Greenhoot and Lee
Hospital and consolidating their claims). See generally Janet Gemignani, Will Temp
Workers of the World Unite, Bus. & HEALTH J., Oct. 2000 (reviewing general trend
toward unionization of non-traditional employer groups).
61 See Susan J. McGolrick, N.L.RB. Allows Certain BargainingUnits IncludingBoth
Temporary,Regular Workers, DAILY LAB. REP., Aug. 31, 2000 (reporting lack of presence
of other Judges during oral argument).
62 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *8 (reaffirming Regional Director's
finding). See generallyKenneth R. Dolin & Scott V. Rozmus, PracticalT'ps for Employers
FollowingSturgis, EMP. L. STRATEGIST, Jan. 2001, at 3 (projecting possible future effects
of recent collective bargaining decisions); LaDawn L. Ostmann, Union Rights, No Dues: In
Re Epilepsy Foundationand the N.L.R.B. 's Extension of Weingarten Rights to Nonunion
Employees, 45 ST. LOUIS U. L.J. 1309, 1343 (declaring sudden expansion of employee
rights has left commentators perplexed and hostile).
63 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *21-22 (finding that Jeffboat and TT&O
"meaningfully affect" and "co-determine" important employment decisions and areas
including supervision, assignment, direction and discipline of TT&O supplied employees);
see also Rahebi, supra note 19, at 1117 (explaining to establish joint employer status,
employer must "meaningfully affect" employment relationship). See generally Grant
Crandall, Sarah J. Starrett & Douglas L. Parker, Hiding Behind the Corporate Veil:
Employer Abuse of the CorporateForm to Avoid or Deny Workers' Collectively Bargained
and Statutory Rights, 100 W. VA. L. REV. 537, 572 (1998) (noting 3" Circuit found joint
employer even though two separate business entities were involved because they co-
2002]
TEMPORARY WORKERS ALLOWED TO JOINTHE UNIONS
majority relied on the following evidence: assigned and directed
daily work, imposed discipline and monitored worktime. 64 The
Board declined the opportunity to determine whether the joint
employer definition should be expanded. 65 With respect to
Petitioner Sturgis, the Board granted the motion to reopen the
hearing.66 Neither Sturgis nor Interim contested their joint
employer status. 67 Both cases were remanded to the Regional
Director 68 to determine whether the jointly employed employees
69
share a community of interest.
determined essential employment decisions).
64 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *20 (producing more evidence of written
contract granting Jeffboat broad authority over employees); see also Rahebi, supra note
19, at 1125 (noting court's use of "right of control" test). See generally Dolin & Rozmus,
supranote 62, at 3 (analyzing trend of recent N.L.R.B. decisions regarding non-traditional
workforces).
65 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *18 (stating despite Jeffboat's contention,
there is no need to address limits of standard); see also Debra Dyleski Najjar, The
National Labor Relations Board's Jurisdictionover Employers Contractingwith Exempt
Public Entities,62 B.U. L. REV. 1197, 1208 (1982) (noting inconsistency in application of
joint employer standard). See generally William B. Gould, IV, The Third Way: Labor
Policy beyond the New Deal, 48 KAN. L. REV. 751, 754 (2000) (asserting Congressional
interference with many Board policy innovations).
66 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *57-8 (asking Regional Director to
determine unit irrespective of limits imposed by Lee Hospital); see also Lee Hosp., 300
N.L.R.B. 947, 950 (1990) (holding that bargaining units which include both regular
employees and temporary workers are multi-employer bargaining units requiring consent
of employers); Ostmann, supra note 62, at 1342-43 (stating that Lee Hospital was
overruled to extent Sturgis covered).
67 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *11-12 (explaining Sturgis position that
consent of supply employer should not be required, considering only whether employees
share community of interest); see also Rahebi, supra note 19, at 1126 (determining that
while finding joint employer relationship, regional director was concerned about
community of interest); Katherine V.W. Stone, The New Psychological Contract
Implications of the Changing Workplace for Labor and Employment Law, 48 UCLA L.
REV. 519, 624 (2001) (commenting N.L.R.B. now allows temporary employees to be
included in bargaining units which are mixed of temporary and regular employees of
single employer, or comprised of all employees of single temporary agency).
68 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *43, (emphasizing not every unit
combining jointly and solely employed workers of single user employer should be found
appropriate under community of interest test); see also Michael D. Goldhaber, Is N.L.R.B.
in a Pro-LaborMood?, NAT'L L. J., Oct. 9, 2000, at B1 (quoting one AFL-CIO member that
depending upon how "community of interests" is interpreted, decision may only affect
"permatemps"); Paul Salvatore & John F. Fullerton III, Legacy of Clinton Labor Board,
N.Y.L.J., Mar. 12, 2001, at 11 (stating Board's factors for finding community of interest
are common to many modern workplaces).
69 However, the dissent noted that when Jeffboat is remanded, an even more
stringent community of interest standard will be applied because they are seeking an
accretion to an existing bargaining unit. As a result, the accreted employees are not able
to select their bargaining representative through an election. See Sturgis, 2000 N.L.R.B.
LEXIS 546, at *102 (Brame, M. dissenting in part); Compact Video Servs., 284 N.L.R.B.
117, 119 (1987). Regardless, through either accretion or the formation of a new union, the
result could greatly increase union membership in the workplace. Kenneth R. Plumb,
Decision Signals New Source for Union Activity: Temporary Workers May Unionize with
RegularEmployees, CONN. L. TRIB., Nov. 8,2001.
ST JOHN'SJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
In addition to giving temporary employees the right to
unionization without employers' consent, this decision overruled
Lee Hospital.7o The majority of the Board found that Lee
Hospital was wrongly decided because it did not involve multi7
employer bargaining, and therefore, no consent was required. 1
The Board concluded that the multi-employer bargaining consent
requirement, "[does] not apply to units that combine jointly
employed and solely employed employees of a single user
employer." 72 The NLRB recognized the faulty logic of Lee
Hospital and concluded that a user employer and a supplier
employer were equivalent to the independent employers in multi3
employer bargaining units.7
Finally, the Sturgis decision both clarified and limited the
holding in Greenhoot.74 The Board reaffirmed Greenhoot to the
extent that it requires employer consent for the creation of true
multi-employer units when the petition names unrelated
70 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *3 (restoring rights of contingent workers
by overruling Lee Hospital); see also Ostmann, supra note 62, at 1342-43 (explaining that
Board overruled Lee Hospital'scontention that bargaining units including both regular
employees and temporary workers are multi-employer bargaining units requiring
employer consent); Kimilyn C. Tomita, N.L.R.B. Places Temps and RegularEmployees in
Same BargainingUnit, PAC. EMP. L. LETTER, Jan. 2001 (highlighting that in overturning
Lee Hospital,majority concluded case was incorrectly decided because it did not involve
multi-employer bargaining and therefore no consent was required).
71 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *34-35 (highlighting that Lee Hospital
did not involve multi-employer bargaining); see also Salvatore & Fullerton, supra note
68, at 11 (asserting that Greenhoot and Lee Hospitalhad held that to establish multiemployer unit required each employer's consent); Tomita, supranote 70 (stating that Lee
Hospital did not involve multi-employer bargaining and therefore was incorrectly
decided).
72 Sturgis, 2000 N.L.R.B. LEXIS 546, at *40. See Mark Rubinelli, N.L.R.B. Rules
Temporary Workers Can Be Included in Bargaining Units, Mo. EMP. L. LETTER, Oct.,
2000 (deciphering Board's holding and analyzing effect on both management and union
side); see also Baker & Daniels, N.L.R.B. Applies Collective BargainingAgreement to
Temporary Workers, IND. EMP. L. LETTER, Jan., 2002 (arguing that Sturgis ruling shows
that despite long precedents of excluding temporary agency workers, unions can add these
workers to contracts at any time).
73 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *38 (emphasizing that no Board before
Lee Hospitaladmitted to this policy and neither does this Board). See generallyPeter A.
Ajalat, The Decine of the American Labor Movement. A Proposalfor the Constitution as
a Source of Workers' Rights, 6 SETON HALL CONST. L.J. 683, 683-87 (1996) (discussing
faults with NLRA and proposing Constitution as source of protection to rights of
American workers); Hiatt, supra note 21, at 745-52 (suggesting further solutions to
problems of contingent work force).
74 See Stugis, 2000 N.L.R.B. LEXIS 546, at *2-3 (stating Board in Lee Hospital
overextended ruling and is now taking opportunity to fine tune); see also Dolin & Rozmus,
supra note 62, at 3 (noting majority's discussion that until Lee Hospital they had not
found similar situations to be multi-employer bargaining); Salvatore & Fullerton, supra
note 68, at 11 (claiming that this will lead to collective bargaining negotiations between
employers and temporary employment agencies).
2002]
TEMPORARY WORKERS ALLOWED TO JOIN THE UNIONS
503
employers as the employers.7 5
This decision limited the
Greenhoot doctrine by no longer requiring consent of the
employers in two situations. 76 The first scenario involves the user
employer. A supplier's temporary employees now can be joined in
the same unit with the user employer's regular employees, and
the supplier can be forced to bargain over the terms and
conditions of employment that it controls at the work site. 77 The
second scenario involves the supplier employer. 78A union can
organize all of its employees, regardless of whether those
employees are jointly employed by other user employers, as long
as the union limits bargaining with the supplier employer to the
terms and conditions controlled by the supplying employer. 79 The
Board's reasoning is logical because a multi-employer unit does
not exist when the supplier employer is being petitioned to
represent all the employees of a single unit and names only the
supplier employer. 80
E. Rationale of the Board's Decision
The majority of the Board began their opinion by recognizing
75 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *3, *57 (showing Board's reaffirmation of
Greenhoot); see also Dolin & Rozmus, supra note 62, at 3 (noting majority in Sturgis
limited Greenhoot); G. Phillip Schuler, Employees of Staffimg Firms and Their User May
Be Combined in One BargainingUni LA. CONTRACTOR, Nov. 2000, at 71 (stating that
majority's decision undermined Greenhoot).
76 See Sturgi, 2000 N.L.R.B. LEXIS 546, at *55 (noting that Greenhoot decision
never determined that consent was required); see also Dolin & Rozmus, supra note 62, at
3 (stating that accretion of temporary employees could increase labor costs and limit
operating flexibility); Rahebi, supranote 19, at 1115 (discussing joint employer status and
its effects on unionization).
77 See Sturgis,2000 N.L.R.B. LEXIS 546, at *55-56; see also Rahebi, supranote 19, at
1114-15 (discussing current options available to temporary employees with user and
supplier employers). See generally Crandall, supra note 63, at 537 (1998) (discussing
NLRA); Frances Raday The Insider-OutsiderPolitics of Labor-Only Contracting, 20
COMP. LAB. L. & POL'Y J. 413, 413 (1999) (considering user employer and supplier
employer as joint employers).
78 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *55. See generallyRahebi,supra note 19,
at 1114 (discussing relationship between user employer and supplier employer).
79 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *57 (providing that this particular unit
only involves supplier employer and is not multi-employer unit). See generallyAaron B.
Sukert, Marionettes of Globalization: A ComparativeAnalysis of Legal Protections for
Contingent Workers in the InternationalCommunity, 27 SYRACUSE J. INT'L L. & COM.
431, 453 (2000) (stating that when two separate entities are sharing or codetermining
"terms and conditions" of employee's employment, they are considered joint employers).
80 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *55 (stating that Greenhoot's
requirements do not apply when bargaining relationship is only sought by supplier
because there is no multi-employer unit); see also Permanent Workers, Temps Can be in
Same Unit without Employer's Consent, N.J. EMP. L. LETTER, 2000 (arguing Board
misconstrued multi-employer in Lee Hospital).
STJOHN'SJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
two major changes in society that occurred after Greenhoot and
Lee Hospital were decided: the increase in the number of
temporary workers 8 1 and the growth of alternative employment
arrangements.8 2 The Board acknowledged that the contingent
workforce has been denied representation guaranteed to them
under the National Labor Relations Act [hereinafter NLRA]83
and noted their history of altering previously adopted policies84
when those policies "unfairly prejudice the collective-bargaining
rights of employees." 85 The Board openly admitted that the ruling
of Lee Hospitalmakes it nearly impossible for employees to form
collective bargaining units. 86 For those reasons, the Board
decided to overrule Lee Hospital, in accordance with Section
81 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *3 (highlighting ongoing changes in
American workplace including growth of joint employer arrangements and increasing use
of companies that specialize in supplying temporary workers to augment their work
force); see also Brian C. Baugh, Workers Compensation: Temporary Employees and the
Exclusiveness-of-Remedy Provision, 86 KY. L.J. 163, 166 (1998) (finding temporary
employment to reach 35% by turn of century); Judy Fudge, New Wine into Old Bottles?"
UpdatingLegal Forms to Reflect Changing Employment Norms, 33 U.B.C. L. REV. 129,
142 (1999) (discussing increase in temporary employment); Donald F. Kiesling, Jr., Title
VII and the Temporary Employment Relationship,32 VAL. U. L. REV. 1, 1 (1997) (stating
that since 1970, number of American workers employed as temporary employees has
grown more than 400%).
82 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *4 (showing increase in contract firm and
temporary help agencies); see also Richard R. Carlson, Selected Topics on Employment &
Labor Law: Variations on a Theme of Employment: Labor Law Regulation ofAlternative
Worker Relations, 37 S. TEx. L. REV. 661, 689 (1996) (discussing employee leasing as
alternative form of employment); Fudge, supra note 81, at 137 (commenting on erosion of
standard employment relationship).
83 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *3 (resulting from mistaken application
in Lee Hospital). See generally Mark Berger, ContingentEmployee Benefits Problem, 32
IND. L. REV. 301, 303-07 (1999) (discussing inability of contingent workers to gain benefits
in workplace); Kimberly Hayes, On the Clock Versus on the Books: The Appropriate
Method for Counting Employees under Title VII, the ADEA and Other Labor Laws, 44
BUFF. L. REV. 963, 981 (1996) (explaining lack of representation to contingent employees
due to inconsistencies in definition of employees).
84 See Quaker City Life Ins. Co., 134 N.L.R.B. 960, 962 (1961); see also Metro. Life
Ins. Co., 156 N.L.R.B. 1408, 1416 (1966) (changing Board's policy because denying
insurance company employees same rights of other employees in industry frustrated
policy). See generally Hayes, supra note 83, at 980 (discussing lack of benefits to parttime employees).
85 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *53. See generallyAjalat, supra note 73,
at 684-85 (arguing that Federal Constitution has role in protection of American workers);
Crandall, supra note 63, at 544 (stating N.L.R.B. considers four issues to determine
whether employer must recognize collective bargaining unit); Hayes, supra note 83, at
980 (discussing collective bargaining rights of contingent workers).
86 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *54 (stating that Lee Hospitalnot only
made it hard for employees to obtain union representation , but also resulted in
fragmented units if employees did manage to successfully organize). See generallyAjalat,
supra note 73, at 685 (discussing role of NLRA in promotion of collective bargaining);
Harper, supra note 21, at 330-34 (explaining NLRA's attempts to promote collective
bargaining); Sukert, supranote 79, at 454 (postulating collective bargaining rights).
2002]
TEMPORARYWORKERSALLOWED TOJOINTI-E UMONS
505
9(b).87
The Board relied on the following statistics when they
concluded that the American workforce has changed since their
prior rulings. 88 The U.S.
Department of Labor, Bureau of
Statistics (BLS) found that 4.3% of all employment in February
of 1999 was composed of contingent and alternative employee.89
A large segment of these temporary workers rely on staffing
agencies to employ them. 90 This then forms a triangular
relationship in which there exists the supplier employer (the
agency) and the user employer. 9 1 As a result, staffing service
increased nearly 250% in ten years from 417,000 in 1982 to 1.4
million in 1992.92 Finally, while the total number of jobs in the
87 See Sturgis,2000 N.L.R.B. LEXIS 546, at *53 (stating Board's duty under 9(b) is to
enforce rights granted by ACT to employees). See generally David W. Orlandini,
Employee ParticipationPrograms:How to Make Them Work Today and in the TwentyFirst Century, 24 CAP. U. L. REV. 597, 600-01 (1995) (discussing legislative history of
NLRA); Sukert, supra note 79, at 442 (finding contingent worker's right to organize and
bargain collectively in international arena).
88 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *3-4 (emphasizing change in workplace
since Greenhoot decision in 1973); see also Barbara J. Fick, The ChangingFace of the
American Workplace, 12 NOTRE DAME J.L. ETHICS & PUB. POLY 1, 6 (1998) (discussing
temporary workers as growing segment of American workforce population); Thomas A.
Kochan, Labor Policyfor the Twenty-First Century, 1 U. PA. J. LAB. & EMP. L. 117, 120
(1998) (asserting that model of employment relationship underlying labor and
employment law does not accommodate today's workforce).
89 See Bureau of Labor Statistics, Contingent and Alternative Employment
Arrangements, February 1999,at http://stats.bls.gov/news.release/conemp.nvs.htm (Dec.
21, 1999); see also Vicki Schultz, Life's Work, 100 COLUM. L. REV. 1881, 1925 (2000)
(recognizing that corporations have turned to various forms of non-standard, contingent
work). See generally Fick, supra note 88, at 6 (stating that increase in number of parttime, temporary, and contract workers has resulted in classifying this segment of
employment population as contingency workforce).
90 See Bureau of Labor Statistics, supra note 89 (stating that 1% of this nation's work
force, or 1.2 employees, works for temporary help agencies); see also Melissa A. Childs,
The Changing Face of Unions: What Women Want from Their Employers, 12 DEPAUL
BUS. L.J. 381, 412 (1999/2000) (explaining number of workers employed by temporary
agencies nearly doubled in last decade); Schultz, supra note 89, at 1925 (discussing how
several companies have outsourced full-time positions to temporary agencies).
91 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *73 (dissenting opinion) (stating that
supplier employer serves as intermediary between labor force and user employers). See
generally David L. Gregory, The Problematic Employment Dynamics to Student
Internshps, 12 NOTRE DAME J.L. ETHICS & PUB. POLy 227, 235-36 (1998) (discussing
ramifications of contingent and "leased" workers); Raday, supra note 77, at 415-17
(analyzing cost and benefits of labor-only contracting).
92 See Jonathan P. Hiatt & Lynn Rhinehart, The Growing Contingent Work Force:A
Challenge for the Future,10 LAB. LAW. 143, 145 (1994); see also Lewis L. Maltby & David
C. Yamada, Beyond "EconomicRealities:" The Case for Amending FederalEmployment
Discrimination Laws to Include Independent Contractors, 38 B.C. L. REV. 239, 243-47
(1997) (developing statistical portrait of contingent and alternative employment
relationships). See generally Eileen Silverstein & Peter Goselin, Intentionally
Impermanent Employment and the Paradox ofProductivity,26 STETSON L. REV. 1, 6-8
(1996) (discussing background statistics with contingent workforce).
STJOHN'SJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
work force has grown only 41% from 1982 to 1998, the number of
jobs in the temporary help supply industry rose 577%.93 In 1998,
temporary-staffing companies created more than 300,000 new
jobs, and temporary agencies surpassed $58 billion industrywide. 94
The temporary employee no longer works full-time, but rather
they work for a short duration. 95 A study from the National
Association of Temporary and Staffing Services found that one
third of former employees found permanent jobs from short-term
assignments. 96 In turn, these companies do not have to pay for
medical, dental, vacation and other fringe benefits when deciding
which temporary to hire on a permanent basis. 97 Temporary
employment allows an employer to assess an individual's ability
without having to make a permanent commitment. 9 8 As a result,
93 See General Accounting Office (GAO), In Contingent Workers: Income andBenefits
Lag behind Those of the Rest of Workforce, July 26, 2000, at 16. See generallyMaltby &
Yamada, supra note 92, at 243-47 (developing statistical portrait of contingent and
alternative employment relationships); Silverstein & Goselin, supra note 92, at 6-7
(discussing background statistics with contingent workforce).
94 See Rodney H. Glover, 'Employee' Defined, NAT'L L.J., Aug. 16, 1999, at B6
(analyzing various definitions of employees); see also Risa M. Mish, Perils of Temporary
Employees: Liabil'ty Lurks under Several Fed'l Statutes, N.Y.L.J., June 1, 1998, at S1
(investigating increasing tendency for employers to turn to temp agencies to supplement
staffing needs); Temporary Employment Becomes Big Business, FRESNO BEE, Jan. 23,
2000, at C1 (reporting that 90% of companies use temporary help services according to
American Staffing Association).
95 See Dylan Loeb McClain, LaborPuzzle: As Need for Temporary Workers Soars, Pay
Lags, N.Y. TIMES, Dec. 27, 2000, at G1 (reporting that 55% of temporary workers are in
between jobs and 20% are occasional workers who do not want permanent jobs). But see
Rahebi, supra note 19, at 1109 (stating that temporary work may last for years despite
generalization that temporary work is short term); Temporary Employment Offers a Job
with Plenty of Benefits, TREASURE COAST BUS. J., Sept. 3, 1999, at A6 (asserting that
many temporary workers go on to hold permanent jobs).
96 See Rahebi supra note 19, at 1108-09 (reporting results of National Association
study); From Temp to Permanent Job, STAR TRIB. (Minneapolis), Aug. 10, 1998, at D1
(stating results of National Association study); see also Temporary Employment Offers a
Job with Plenty ofBenefits, supra note 95, at A6 (describing temporary jobs as bridge to
permanent employment).
97 See Jim Coughlin, Temporary Service Industry Seems to be Doing Just Fine as
RightsizingStillFlourishes,BUS. J., Nov. 8, 1993, at 25 (suggesting that companies prefer
to hire temporary workers to avoid overhead of fringe benefits); see also McClain, supra
note 95, at G1 (reporting that only 8.5% of workers provided by temporary agencies
receive health insurance benefits and only 5.8% of these workers have pension plans);
Clyde W. Summers, Contingent Employment in the United States, 18 COMP. LAB. L.J.
503, 511-12 (1997) (discussing effect of temporary agency employment on employee
benefits).
98 See M.B. Sturgis, Inc., 2000 N.L.R.B. LEXIS 546, at *1 ( 2000) (dissenting opinion)
(explaining that user employers benefit by these employment agencies as way to recruit
temporary employees and test them before giving them permanent offers); Coughlin,
supra note 97, at 25 (stating that companies hire temps-to-direct because then they can
"try before they buy"); Diane Kunde, Firms Offer Perks to Lure, Keep Temps, RECORD
2002]
TEMPORARY WORKERS ALLO WED TO JOIN THE UNIONS
employers' get to "try before they buy."99
Also, temporary employees do not reap the same benefits as
their permanent counterparts.100 These contingent workers are
not eligible for federal health benefits and can be dismissed at
will with no appeal rights or other protection.10 In addition,
temporary employees have no job security, because assignments
may last a day, a week, a month or a year.102 The American
Staffing Association found that in 1999 the average length of a
typical employee's assignment rose from the 9.5 week duration in
3
1998 to 10.3 weeks the following year.10
There are a plethora of reasons why the numbers are rising in
the contingent workforce.l04 The U.S. Labor Department found
(Bergen County, N.J.), Dec. 19, 1999, at 2 (quoting Valerie Freeman, founder and chief
executive officer of Dallas-based Imprimis, who stated, "40 to 45 percent of our business is
temp to full time, try before you buy, or full time.").
99 See McClain, supra note 95, at G1 (comparing temporary workers to on-call
workers and workers provided by contract firms with respect to receiving health
insurance and pension plans); see also Summers, supra note 97, at 511-12 (discussing
effect of temporary agency employment on employee benefits). But see Sturgis, 2000
N.L.R.B. LEXIS 546, at *84-85 (dissenting opinion) (explaining how temporary
employment has multiple benefits: supplier employers are able to provide greater
opportunity for job progression; valuable contacts and references; job opportunities during
swing economy; reducing time and cost of job search; and training).
1oo See McClain supra note 95, at G1. But see Sturgis, 2000 N.L.R.B. LEXIS 546, at
*84-85 (dissenting opinion).
101 See U.S. to Hire Temporaries to Cut Costs, CHI. TRIB., Jan. 2, 1985, at 1 (stating
that temporary employees receive fewer fringe benefits and are dismissed more easily
than Civil Service workers); see also Developments in the Law- Employment
Discrimination,109 HARv. L. REV. 1647, 1648 (1996) (asserting that growth of temporaryemployment industry reflects deteriorating employee entitlements); Laura Gentile,
Defeatingthe SpecialEmployment Defense, N.Y.L.J., Oct. 25, 2000, at 1 (recognizing that
consequences of being temporary employee is loss of employment benefits).
102 See Rahebi, supra note 19, at 1111 (stating that temporary work is characterized
by reduced job security); Summers, supra note 97, at 509 (asserting that although
temporary employment is usually for short duration, it can extend into months or years);
Ihejirika, supra note 14, at C16 (stating that despite initial duration expectations, there
are no guarantees).
103 See Wayne Tompkins, Workplace: Temps Find New Niches, COURIER (Louisville,
KY), July 3, 2000, at 1C (listing that statistic); see also Sturgis,2000 N.L.R.B. LEXIS 546,
at *77 (dissenting opinion) (stating 1997 Bureau of Labor Statistic (BLS) study showed
median tenure was five months for single temporary assignment and six months for
temporary agency overall); Maureen Dobie, Temp Firms Turn to Benefits to Attract
Workers, INDIANAPOLIS Bus. J., Feb. 17, 1997, at 21 (commenting on National Association
of Temporary and Staffing Services study showed average temp agency worker held job
for less than thirteen weeks).
104 See Juliet F. Brudney, Contingent Work Arrangements Vary Greatly, BOSTON
GLOBE, Feb. 7, 1999, at G4 (listing desire to be one's own boss and earn more as reasons
for becoming temporary employees); Genevieve Giuliano, Information Technology Work
Patterns and Intra-Metropolis Location: A Case Study, URBAN STUDIES, June 1, 1998
(explaining high labor costs, increased marker uncertainties and change in labor force
composition as reasons for rise in use of contingent workers); Rahebi, supra note 19, at
1110 (finding different theories on rise of contingent workers and concluding both
ST JOHN'SJOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
that 32 % of all temporary workers took their present job because
they could not find a permanent one. 105 On the other hand, this
industry offers flexibility to both employees and companies
because people can choose when, where, and how they want to
work.10 6 In turn, the temporary workforce benefits the employer
by providing necessary help during busy times, without the
employer having to pay for a permanent counterpart during slow
times. 107
III. THE EFFECTS OF UNIONIZATION ON THE TEMPORARY
WORKFORCE
Since the Board decided this case on August 25, 2000, there
has been uproar not only among the labor and employment
community, but also in our government over this change in
policy.108 Critics and advocates of this decision are usually split
employee flexibility and management's "bottom line" are significant reasons).
105 See Jim Barlow, Temping is Not Permanent Trend, Hous. CHRON., Aug. 24, 2000,
at 1 (listing other reasons as family, personal obligations, desire for flexibility and hope
that temp job would lead to permanent employment); see also Brudney, supranote 104, at
G4 (noting many individuals take temp jobs because they cannot find regular jobs with
sufficient pay, benefits, or career development opportunities); Thomas A. Stewart,
Planning a Career in a World Without Managers, FORTUNE, Mar. 20, 1995, at 72
(explaining survey by National Technical Services Association, trade group for employers
of contingent workers, showed 23% of contract employees were between "permanent"
jobs).
106 See Brudney, supra note 104, at G4 (stating some prefer contingent work for
freedom in choosing what they do, for whom, when and where); Temporary Employment
OtTers a Job with Plenty ofBenefits, supranote 95, at A6 (claiming two-thirds of assigned
employees find flexible work time important to them and eight in ten companies define
flexibility as primary reason for turning to temporary employees); see also Gene Koretz,
Taking Stock of the Flexible Work Force, BUS. WEEK, Jul. 24, 1989, at 12 (reporting many
contingent workers welcome flexibility).
107 See Carrie Johnson, Ruling on Temps Reflect a ChangingWorkplace, WASH. POST,
Sept. 10, 2000, at Ml (reporting most businesses lean on temporary workers during
seasonal shifts in demand, however, technology companies rely on contingent workers
during unpredictable business cycles); Carolyn Shaw Bell, Tight Job Market Allows
Alternatives to Full-Time Work; The Rise of'Contingent Labor' B. GLOBE, June 29, 1999,
at D4 (noting contingent workers often cover seasonal bulges in production or sales);
see also Sturgis, 2000 N.L.R.B. LEXIS 546, at *71-72 (dissenting opinion) (commenting
some businesses turn to temporary agencies to focus on core functions, improve response
to changing circumstances, or acquire expertise in new areas).
108 See Bush Second-Tier TransitionSpeculation, BULLETIN'S FRONTRUNNER, Jan. 12,
2001 (predicting President Bush's potential replacement of four N.L.R.B. members by
2002 could overturn Sturgis); Steven Greenhouse, Temps Ok'd to Join Unions, DENV.
POST, Aug. 31, 2000, at A7 (stating business groups' criticism of ruling based on potential
increase of employer's production costs); see also Testimony Changing Trends in Labor
ManagementRelations,Before the House Banking andFinancialServices Comm., FDCH
CONG. TESTIMONY (2000) (statement of John A. Boehner, Representative, Chairman of
Subcommittee on Employer-Employee Relations) (testifying to N.L.R.B.'s overturning
numerous well-established labor laws within last year).
2002]
TEMPORARY WORKERSALLOWED TO JOIN
17TE UMONS
509
along the lines of pro-union and pro-labor.109 Officials with the
A.F.L.-C.I.O. said it would help improve wages, benefits, and
working conditions for many of the 1.2 million people employed
by temporary agencies.110 The President of the A.F.L.-CIO
reacted positively to the decision, describing the ruling as "an
important step in addressing the rights of contingent work force
employees, who have too often been relegated to second class
status and rights, if any."l 1I
Even the advocates of this decision, however, will admit that
there are some major loopholes." 2 The most noteworthy of these
loopholes is the limited impact this decision will have on the
temporary workforce.
Sturgis only applies to long-term
temporary employees.11 3 The nation has 3.1 million temporary
employees, but the user employer only employs a small
percentage of them for a significant period of time.' 14 As a result,
109 See Susan J. McGolrick, Will N.L.R.B. "s Recent Sturgis Ruling Help or Hurt
Organizing,Bargaining DAILY LAB. REP., Sept. 6, 2000, at 2284 (reporting AFL-CIO
President John J. Sweeney has described ruling as "an important step in addressing the
rights of contingent workforce employees, who have too often been relegated to second
class status and rights," while former N.L.R.B. member characterized it as limited victory
for unions); Temps Gain Right to Join Unions, ORLANDO SENTINEL, Aug. 31, 2000 at All
(stating AFL-CIO officials hail ruling because it will help improve wages, benefits and
working conditions for temporary employees); see also Susan J. McGorlick, N.L.R.B.:
House Subcommittee Chair Questions Board Decisions Overturning Precedent, DAILY
LAB. REP., Sept. 20, 2000 (explaining Chairman of House Education and the Workforce
Subcommittee on Employer/Employee Relations, Republican John Boehner's concern that
this ruling will only exacerbate backlog of pending cases).
110 See Steven Greenhouse, Labor Board Makes Joining Union Easierfor Temp Staf,
N.Y. TIMEs, Aug. 21, 2000, at A16 (noting enthusiasm from labor side); see also Megan
Mulholand, National Labor Offcials Make Changes in InterpretationofLabor Relations
Act, KNIGHT RIDDER TRIB. Bus. NEWS, Oct. 16, 2000 (characterizing N.L.R.B. under
President Clinton as more concerned for workers' rights than N.L.R.B. under Reagan and
Bush). But see Megan Mulholland, National Labor OfTcials Make Changes in
Interpretation of Labor Relations Act, KNIGHT RIDDER TRIB. BUS. NEWS, Oct. 16, 2000
(reporting American labor law gives workers fewer rights than any other industrial
nation).
Ill See Greenhouse, supra note 10, at A16; see also Mulholland, supra note 110.
112 See Greenhouse, supra note 110, at A16 (asserting decision may provide lower
incentive for employer use of outsider work).
113 See Stephanie Armour, Temps Get a BargainingBoost CHI. SUN TIMES, Sept. 3,
2000, at 1 (stating decision mostly impacts long-term temporary employees); George
Hohmann, Impact of Labor Decision Unclear, Temp Workers Allowed to Join Union after
Ruling, CHARLESTON GAZETTE, Sept. 11, 2000, at P2A (observing ruling will mostly
impact temporary workers on long-term assignments at companies attempting to save
money on training and benefits"); see also Jonathan Segal, Organizing Temporary
Employees, MONDAY BUS. BRIEFING, Oct. 20, 2000 (noting only long-term jointly
employed individuals would feel incentive to unionize).
114 See McGolrick, supra note 109 (finding temporary agencies have 400% turnover
rate); Jianfeng Pei, Labor Shortage Restrains Temporary- Staffing Firms, Purchasing,
May 18, 2000, at 165 (noting 1999's 405% turnover rate for temporary employees was
down from 446% in 1998); see also Will Temps Get Organized?, MAG. FOR SENIOR FIN.
ST JOHN'SJOURNAL OFLEGAL COAENTARY
[Vol. 16:489
this decision will have little impact on the American workforce as
5
a whole.' 1
A. Inconsistencieswith the Statutory Principlesof the NLRA
The Board took into consideration the changing workforce in
the United States when they redefined the rights of temporary
workers.' 1 6 The Board concluded that the expansion of temporary
workers included in collective representation, without consent of
7
either employer, is consistent with respect to the statute."
In order to determine the merit of the NLRB's decision, an
analysis of the NLRA118 and its purposes is appropriate. 1 9 The
NLRA was enacted in 1935 with a two-fold purpose: (1) improve
the dignity and status of the working class and (2) encourage
industrial
peace through
collective
bargaining. 120
The
ExECTIVES, Oct. 1, 2000 (noting contractors make up 1.5% of total workforce and 25%
stay on job for over one year).
115 See Will Temps Get Organized?, supra note 114 (characterizing impact of Sturgis
on American workforce as "less than meets the eye"). But see Doug Brown, Temps Rule in
Big Reversal, Unions Open Up, INTERACTIVE WKL, Oct. 19, 2000 (laying out experts' view
that Sturgis will have more immediate impact on organizations with both labor unions
and high concentrations of contingent workers); Mark H. Floyd, Union Organizing of
Temporary Employees Subject to New Standards,37 TENN. B. J. 23, 27 (2001) (arguing
Sturgiswill have greater impact on employers with existing labor unions).
116 See Brown, supra note 115 (noting change in workplace from one of stability
gained from life-time employees to today's workplace of fluidity and instability); McClain
supra note 95, at GI (finding temporary workers make up fastest growing segments of
workforce). But see Diane Stafford, 72 Percent of American Workers Have Traditional'
Full-Time Jobs, Report Says, KAN. CITY STAR, Oct. 26, 2000, at C1 (reporting no trend
exists to compare temporary workers' growth or decline).
117 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *36; see also 29 U.S.C. § 159 (2001)
(providing Board with power to determine appropriate unit for collective bargaining
purposes).
118 Section 1 of the National Labor Relations Act posits that the Act will promote the
free flow of commerce through "removing recognized sources of industrial strife.. .by
encouraging practices fundamental to the friendly adjustment of industrial disputes
arising out of differences as to wages, hours, or other working condition by restoring the
equality of bargaining power between employers and employees." 29 U.S.C § 151 (1982).
The National Labor Relations Board is the independent federal agency created to
administer the NLRA. See The N.L.R.B.: What it is, What it does, supra note, 1. Due to
the N.L.R.B.'s special competence in the field of labor relations, the N.L.R.B. has the
primary responsibility for applying the general provision of the Act with the complexity of
industrial life. See PatternMaker League v. N.L.R.B., 473 U.S. 95, 100 (1985); N.L.R.B. v.
Ezie Resister Corp., 373 U.S. 221, 236 (1963).
119 See The N.L.R.B.: What it is, What it does, supra note 1 (outlining purposes of
NLRA and N.L.R.B.).
120 19 U.S.C. § 151 (1982). The Preamble of the NLRA declares it to be the "policy of
the United States," to eliminate the obstructions to commerce previously brought about by
work stoppage. 19 U.S.C. § 151 (1982). The Preamble asserts that granting workers the
statutory right to organize and negotiate their own terms of employment will further the
Act's goals. See 19 U.S.C. § 151 (1982); N.L.R.B. v. Wash. Aluminum Go., 370 U.S. 9, 17
(1962); see also Laurie Ann Krepto, Labor Law - Employer's Duty to Bargainover a Plant
2002]
TEMPORARY WORKERSALLOWED TO JOINTHE UNIONS
511
substantive goal of the NLRA was to allow workers to unite to
increase their wages through collective bargaining.12 1
In the dissenting opinion of Stugis, Member Robert Brame III
states that this decision sacrifices the fundamental statutory
principle.12 2 Member Brame believes that forcing employers of
different employee groups to bargain, despite their conflicting
interests with respect to the bargaining unit employees, will
destroy the commonality of interest. 123 Member Brame
acknowledges that Section 9(b) gives the Board substantial
discretion in determining the appropriateness of bargaining units
within the framework of the statute, but he concludes that the
express language of Section 9(b) clearly evinces the appropriate
units. 124 Member Brame relies on the fourth circuit decision in
NLRB vs. Lundy Packing Co.,125 which overturned a prior
Board's ruling where the Board erred in establishing a standard
for unit determination.126 The Court of Appeals stated that the
Relocation: D.C. Circuit Court ofAppeals Approves N.L.R.B. 's New Test, 67 TEMP. L. REV.
473, 489 (1994). Since 1935, NLRA has served as the principle source of labor rights for
the American work force-even affording protection to non-union employees who act
concertedly for their mutual aid and protection. Richard Risch, Self, Others, and Section
7: Mutualism andProtectedProtestActivities under the NLRA, and Section 7, 89 COLUM.
L. REV. 789, 789-90 (1989).
121 See, e.g., Weingarten, Inc. v. N.L.R.B., 420 U.S. 251, 261 (1975) (holding that
supermarket clerk, who was accused of minor pilfering, had right to request presence of
her union steward at her investigatory interview which could have reasonably resulted in
discipline); see also Am. Ship Bldg Co. v. N.L.R.B., 380 U.S. 300, 316 (1965) (reviewing
employer action of shutting down plant in order to pressure employees to change their
bargaining possession).
122 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *59-60 (2000). Brame found the unit at
issue in Sturgis to entail multi-employer bargaining because it included employees of
more than one bargaining unit. See id. at 59-60.
123 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *60-61 (dissenting opinion) (stating that
to ensure common interests among bargainers, section 9(b) requires employee's must
share a community of interest."); see also id. at *60 (expressing Brame's fear that by
lumping temporary workers with regular workers, an impermissible conflict of interest
was manifested).
124 See Sturgis,2000 N.L.R.B. LEXIS 546, at *60. Section 9(b) of the National Labor
Relations Act states, in pertinent part: "The Board shall decide in each case whether, in
order to assure employees the fullest freedom in exercising the rights guaranteed by this
act, the unit appropriate for the purposes of collective bargaining shall be the unit, craft
to unit, plant unit, or subdivision thereof." 29 U.S.C. § 159(b) (1982). Brame noted that
section 9(b) clearly shows that appropriate units are to be drawn along the presented
grouping of employees and not combinations thereof. Sturgis, 2000 N.L.R.B. LEXIS 546,
at *91-92. See generallySouth PrairieConstr. Co. v. OperatingEng'rsLocal 627, 425 U.S.
800 (1976) (holding features relevant in determining extent of employer's operation are
not necessarily determinative of extent of suitable unit).
125 68 F.3d 1577 (4th Cir. 1995).
126 See LundyPacking Co., 314 N.L.R.B. 1042, 1043 (1994).The fourth circuit decision
in Lundy overturned the N.L.R.B.'s adoption of a legal standard which mandated that
.any union proposed unit is presumed appropriate unless an overwhelming community of
ST JOHN'SJOURAL OF LEGAL COMMENTARY
[Vol. 16:489
Board is prohibited from determining the appropriate units for
2
collective bargaining. 1 7
The majority in Sturgis reasoned their prior policy in Lee
Hospital denied numerous employees the right of collective
representation accorded to other employees.1 28 Section 9 (b)
explicitly states that the Board is to decide the appropriate
bargaining unit that ensures employees their rights and
protections guaranteed by the NLRA.129 In essence, the majority
of the Board concluded that the appropriate bargaining unit
should apply the same standard to analyze whether temporary
and permanent employees should be included in the same
bargaining unit. 130
B. PracticalProblems
1. Community of Interest
One reason why temporary employees advocated union
involvement is the lack of close relationships with their
employers. 131 Since temporary employees do not have lengthy
relationships with their employer, they are not able to become
interest exists between the excluded employees and the union proposed unit." Lundy, 314
N.L.R.B. at 1043. The fourth circuit found it problematic that the board afforded
controlling weight to the "extent" of the union organization. Lundy Packing Co., 68 F3d
1577, 1581 (4th Cir. 1995); see also Sturgis,2000 N.L.R.B. LEXIS 546, at *91 (dissenting
opinion) (stating importance of Board acting within their discretion while under statutory
framework).
127 See Lundy Packing Co., 68 F.3d at 1579 (refusing to enforce Board's bargaining
unit determination because it contravened its own standards and violated NLRA).
128 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *2-3 (concluding that decision in Lee
Hospital, which treated unit at issue as multiunit-employer, denied growing number of
employees who make up contingent workforce representational rights guaranteed under
NLRA). See generallyMichael D. Goldhaber, Is NLRA in a Pro-LaborMood NAT'L L.J.,
Oct. 9, 2000 (reporting that N.L.R.B. has issued eight decisions overruling precedent,
seven of which had come in last three months).
129 See 29 U.S.C. § 159(b) (1982) (stating that purpose of this provision is to assure
employee's freedom to fully exercise their rights under Act).
130 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *27-30 (discussing prior cases and
history of decisions on this subject to conclude what proper standard is); see also Harper,
supra note 21, at 334-35 (analyzing predominant use of control test throughout
employment law jurisprudence).
131 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *65-66 (noting that Sturgis employs
thirty-five full time workers and has ten to fifteen temporary workers and within seven
month period, agency which supplied temporary workers placed approximately fifty
different employees in ten to fifteen positions); see also Ihejirika, supra note 14, at 16
(explaining when company tells temporary employee that their job is indefinite, in reality
that means until employer does not need temporary employee any more).
2002]
TEMPORARYWORKERSALLOWED TO JOINTHE UNIONS
members of the corporate family. 132 As a result, temporary
workers are less in tune with the workplace conditions and
33
politics. 1
Ironically, although there is a pressing need for temporary
workers to become unionized, this decision may result in the
employers isolating temporary workers even more.1 34 Employers
may try to distinguish the permanent employees from the
temporary workers to ensure that there is no community of
interest.1 35 A number of suggestions have been made to minimize
the impact of this decision by reducing the degree of control over
the temporary employees. 36 This can be accomplished by: (1)
establishing a fixed time when the temporary employees become
permanent employees or are replaced; (2) requiring them to sign
an agreement with the temporary service that such service has
the authority to discipline the temps; (3) acknowledging that the
temps' employment is of temporary nature and that they aren't
entitled to the same benefits as your regular workforce; (4)
making it a policy for the temporary employee to report
harassment or mistreatment by regular employees to the
temporary agency. 37
132 See Mary E. O'Connell, Contingent Lives: The Economic Insecurity of Contingent
Workers, 52 WASH. & LEE L. REv. 889, 913 (1995) (stating "in the hard, cold world where
work is a transaction and not a relation, many contingent workers are simply on their
own.").
133 See Baugh, supra note 81, at 192 (describing how temporary employees are less
likely to know safety rules or where to report unsafe conditions); Rahebi, supra note 19, at
1112 (summarizing why temporary employees have detached relationships from their
employer).
134 See Greenhouse, supra note 110, at A16 (reporting criticism based on raised
production costs and less incentive to use outside workers); Vai Io Lo, Atypical
Employment: A Comparisonof Japanand the UnitedStates, 17 COMP LAB. L.J. 492, 500
(1996) (discussing general reasons why unionized workers distrust temporary employees).
135 See L.M. Sixel, Ruling on Temps Pleases Unions, HOUS. CHRON., Sept. 8, 2000
(showing how employers could alienate temporary employees from their permanent
counterparts in order to ensure there is no "community of interest"); see also Kiesling,
supra note 81, at 2 (describing temporary employee relationships with employers).
136 See McGolrick, supra note 109 (reporting on recommendations that employers
should structure their relationships with temporary employees to defeat community of
interest by separating them, giving them different badges, and having on site supervision
by temp agency). But see H. Lane Dennard, Jr., Leased Employment: Character,
Numbers, and the Labor Law Problems, 28 GA. L. REV. 683, 691 (1994) (suggesting that
there is no data to support view that temporary employees are utilized to prevent
unionization).
137 See Temps Ehible for Union Representation at Job Assignments, ALA. EMP. L.
LETTER, October 2000 (listing ways employer can reduce control over their temporary
employees); see also Developments in the Law-Employment Discrimination,109 HARV.
L. REV. 1647, 1652 (1996) (discussing history of legislative attempts to improve treatment
of temporary employees); Temps May Be Included in Regular Employees' Bargaining
ST JOHN'SJOURNAL OFLEGAL COMMENTARY
2.
[Vol. 16:489
Who is in charge?
If a union is made up of both groups of employees, the question
arises as to who will negotiate the contract: the company that
supplies the employees or the company where the employees
work.138 Other questions arise as to who is responsible in
negotiating the pay or the working conditions. 39 As a result,
these temporary workers could ultimately be wondering, "who is
my boss?"' 40 Daniel Yager, the general counsel for the Labor
Policy Association, stated that the Board's ruling will "create
chaos" because the temporary employees will be subject to two
different sets of rules: those of the supplier employer and those of
the user employer.'41
3.
Temps May Be Accreted to Union Without A Vote
One very critical issue, which was not addressed in the Sturgis
decision, is whether employers who currently have a union can
add temporary employees by accreting them without their
vote. 4 2 Temporary employees may not want to become unionized
with their permanent counterparts because they are probably in
the minority. 14 3 In reality, persons, with different interests may
Unit, KY. EMP. L. LETTER, Oct. 2000, (describing other ways of reducing control).
138 See PreparedTestimony of G. Roger King from Jones, Day, Reavis & Pogue on
Behalf of the Society for Human Resource Management [hereinafter King Testimony,
FED. NEWS SERVICE, Sept. 19, 2000 (pointing out that Board does not address practical
problems arising out of forcing two employers to bargain together); Clyde W. Summers,
Contingent Employment in the United States, 18 COMP. LAB. L.J. 503, 513 (1997)
(describing collective bargaining's effect on temporary employees).
139 See King Testimony, supra note 138 (questioning result when temporary workers
are subjected to two different sets of rules); see also Gillian Lester, Careers and
Contingency,51 STAN. L. REV. 73, 79 (1998) (discussing temporary employee's tendency to
have weak affiliations with companies for whom they work).
140 See Rahebi, supra note 19, at 1108 (discussing role of safety agencies who secure
work for temporary employees); Ruling on Temps Pleases Unions, HOUS. CHRON., Sept. 8,
2000, at B l(questioning who has authority between temporary and contract firms).
141 See Hiatt, supra note 21, at 741-42 (discussing how temporary employment
agencies possess little ability to actually affect working conditions); N.L.R.B.: House
Subcommittee Chair Questions Board Decisions OverturningPrecedent,supra note 109
(questioning how seniority would be determined or 401K plans applied).
142 See N.L.R.B.: House Subcommittee Chair Questions Board Decisions Overturning
Precedent,supra note 109 (summarizing testimony of former board member, Charles I.
Cohen, on behalf of U.S. Chamber of Commerce, which stated temporary employees are
subject to coverage by bargaining agreement, "without ever having an opportunity to opt
for or against representation by a union."). See generally Elizabeth J. Fullenkamp,
Goodman v. Sioux Steel Co.: South Dakota Limits Temporary Employee's Recovery to
Workers Compensation,38 S.D. L. REV. 379, 384 (1993) (describing dramatic increase of
temporary employees in recent years and their affect on labor costs and productivity).
143 See Susan McGolrick, Contingent Workers: N.L.R.B. 3-1 Allows Certain
2002]
TEMPORARY WORKERSALLOWED TOJOIN THE UNIONS
decide some of these decisions. 44 Another view could argue that
the temporary employees cannot be added to the unit because
they have been historically excluded, and as a result, the
temporary employees would be given the right to decide for
themselves whether they wish to be added to the unit.145 Such
arguments will not work if the employer wishes to use temporary
workers in the future.14 6 One can also argue that employers will
want to put the temporary workers in with their permanent
counterparts in order to dilute the pool of voters to work against
the unions. 147
It is possible that labor unions only have to petition the labor
board to rule that temporary employees at a unionized work site
should be added to the union bargaining unit, without a vote by
the temporary workers. 148 One of the major disagreements with
Bargaining Units Including Both Temporary, Regular Workers, DAILY LAB. REP., Aug.
31, 2000 (purporting that majority instructed regional directors to determine whether
temporary employees share same community interest as regular employees); see also
Mark Berger, The Contingent Employee Benefits Program, 32 IND. L. REV. 301, 306
(1999) (discussing ambiguities in benefits eligibility for temporary employees, and
difficulty they face in qualifying for benefits).
144 See N.L.R.B. Opens Door to Union Organizingby Temporary Workers, ME. EMP.
L. LETrER, Oct. 2000 (describing fate of temporary employees, who are usually minorities
with substantially different interests from regular employees).
145 See Temps ElIgible for Union Representation at Job Assignments, ALA. EMp. L.
LETTER, Oct. 2000 (suggesting to minimize impact of this decision by establishing fixed
time when temporaries either become regular employees or are replaced; written
agreement that temporary service has authority to discipline employees; encouraging
temps to report harassment or mistreatment by regular employees; and not conducting
performance reviews for temporary employees); see also Aaron B. Sukert, Marionettesof
Globahzation:A ComparativeAnalysis of Legal Protectionsfor Contingent Workers in the
International Community, 27 SYRACUSE J. INT'L L. & COM. 431, 442 (2000) (discussing
various regulatory protections in international arena for contingent workers such as
prohibition of discrimination, right to organize and bargain collectively, occupational and
safety guarantees, and written employment contracts).
146 See Temporary Workers May Now Join Unions with Regular Employees, MINN.
EMp. L. LETTER, Oct. 2000 (explaining that employers who merely discontinue using
temporary employees who express interest in joining union, run risk of facing unfair labor
practice charge). See generally Eileen Silverstein & Peter Goselin, Intentionally
Impermanent Employment and the Paradox of Productivity, 26 STETSON L. REV. 1, 3
(1996) (proposing how employers of temporary employees are reluctant to train contingent
employees, because they will soon leave and take training investment with them).
147 See L.M. Sixel, Ruling on Temps Pleases Unions,Hous. CHRON., Sept. 8, 2000, at
1 (suggesting ruling may work against unions as employers put temps into bargaining
units in attempt to dilute voting pools); see also Mark Berger, Unjust Dismissal and the
Contingent Worker: RestructuringDoctrinefor the RestructuredEmployee, 16 YALE L. &
POLY REV. 1, 15 (1997) (proposing contingent employment environment, which offers
substantially increased flexibility in handling workforce for employers who have high-low
production volume).
148 See Steven Greenhouse, supranote 110, at A16 (announcing that under decision of
N.L.R.B. labor unions can petition board to rule that several dozen employees should be
added to bargaining unit without obtaining vote of temporary workers).
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[Vol. 16:489
the majority view involved the accretion context for Petitioner
Jeffboat.149 On remand, if the Board concludes that these joint
employers share a community of interest, the supplier employer
will be bound by the collective bargaining agreement negotiated
with permanent employees.150
As a result, the supplier
employers will be forced to abide by contracts that they did not
negotiate.151
This argument fails to take into consideration the Board's
restrictive policy when seeking accretion1 5 2 The Board will only
find accretion when the temporary employees can not be
considered a separate appropriate unit because they have little or
no separate group identity and they share a community of
interest with the pre-existing bargaining unit.153 The Board has
149 See Rosenfeld, supra note 12, at 1 (reporting that unions who presently represent
unit of employees will now be able to "accrete" these temporary employees, but Board has
not decided whether unit will be given opportunity to vote on matter); see also Rahebi,
supra note 19, at 1113 (explaining temporary workers generally are not embraced by
unions due to adverse effects on status of full-time workers); Clyde W. Summers,
Contingent Employment in the United States, 18 COMP. LAB. L.J. 503, 513 (1997)
(indicating temporary employee's rights, while simultaneously espousing N.L.R.B.'s and
unions strenuous efforts to exclude 'temps' from bargaining units).
150 See NL.R.B. Opens Door to Union Organizingby Temporary Workers, supranote
144 (discussing how this policy could be major problem for temporary employees, as their
fate will be decided by those with substantially different interests); see also Permanent
Workers, Temps Can Be in the Same Unit Without Employer's Consent, N.J. EMP. L.
LETTER, Dec. 2000 (explaining greatest impact on already unionized employers that use
temps, as unions begin to file unit clarification petitions). But see Kimilyn C. Tomita,
N.L.R.B. Places Temps and Regular Employees in Same Bargaining Unit; PAC. EMP. L.
LETER, Jan., 2001 (noting problems for user employers, as "contracting out" does not
serve as insulation from N.L.R.B. decision).
151 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *123 (2000) (dissenting opinion)
(identifying accretion problem with respect to jointly employed employees and unit of
solely employed employees obligating supplier employer to comply with existing collective
bargaining agreement that employer had no hand in negotiating); see also Dolin &
Rozmus, supra note 6, at 1 (including among problems for employers increased labor costs
and limited operating flexibility); Matthew S. Miner, ReformingAccretion Analysis under
the NLRA: Supplementing a Borrowed Analysis with Meaningful Policy Considerations,
31 U. MICH. J.L. REF. 515, 533-34 (1998) (recognizing overlooked factor of employer
motive for accretion analysis).
152 See Towne v. Ford Sales, 270 N.L.R.B. 311, 311 (1984), afid, 759 F.2d 1477 (9th
Cir. 1985) (rationalizing that these employees are not accorded self-determination and
Board seeks to insure that employees' right to determine their own bargaining
representative is not foreclosed); Westinghouse Elec. Corp. v. N.L.R.B., 440 F.2d 7, 12 (2d
Cir. 1971) (finding general rule that accretion doctrine should be applied restrictively
because it denies employees opportunity to express their desires regarding membership in
unit); see also Miner, supra note 151, at 527 (commenting on consideration of employee
interest and reluctance to expand doctrine of restrictive application regarding accretion).
153 See Kalamazoo Paper Box Corp., 136 N.L.R.B. 134, 137 (1962) (holding that
separate truck drivers' unit was warranted because functional distinctions demonstrated
differing interests); Alexander Colvin, Rethinking BargainingUnit Determination:Labor
and the Structure of Collective Representation in a Changing Workplace, 15 HOFSTRA
LAB. & EMP. L.J. 419, 445n.170 (1998) (stating "[a]ccretions involve the addition of
20021
TEMPORAR Y WORKERS ALLO WED TOJOIN THE UNIONS
identified certain factors in their previous decisions that are
critical to finding an accretion: (1) degree of interchange of
employees between the affiliated companies; 154 (2) whether day to
day supervision of employees is the same in the group sought to
be accreted;155 (3) terms and conditions of employment;1 56 (4)
similarity of skills and functions;157 (5) physical, functional, and
administrative integration;158 (6) and bargaining history.159
employees to an existing unit where these employees share a 'community of interest' with
that unity"); Rahebi, supra note 19, at 1129 (explaining evaluation of community does not
require complete similarity of interest, rather similarities among skills, wages, hours and
other working conditions).
154 See MacTowing, 262 N.L.R.B. 1331, 1334 (1982) (holding petitioner created
separate unit due to lack of interchange of employees). See generally Int'l Assoc. of
Machinists and Aerospace Workers v. N.L.R.B., 759 F.2d 1477, 1479 (9th Cir. 1985)
(articulating factors N.L.R.B. uses in determining accretion of group of employees into
existing bargaining unit which include degree of employee interchange between groups);
Miner, supra note 151, passim (suggesting that answers, when using accretion analysis,
depend on myriad of factors).
155 See Save-It Discount Foods, 263 N.L.R.B. 689, 694 (1982) (proposing most relevant
factor to be whether or not employees perform day-to-day work under immediate
supervision of one involved in similar work); see also Renzetti's Mkt., Inc., 238 N.L.R.B.
174, 175 (1978) (emphasizing significance of this element because daily problems and
concerns among employees may not be same for similar employees at other sites with
different supervision); Purity Supreme, Inc., 197 N.L.R.B. 915, 917 (1972) (extrapolating
additional factors in considering day-to-day operations including same supervision and
duties of that supervisor).
156 See, e.g._ W. Cartridge Co., 134 N.L.R.B. 67, 69 (1961) (finding employees in
pyrotechnic department and employees in detonator department within same unit after
recognizing same conditions of employment between these two); see also Staten Island
Univ. Hosp. v. N.L.R.B., 24 F.3d 450, 455 (2d Cir. 1994) (announcing that differences in
employment conditions is more significant factor). See generallyLocal 144 v. N.L.R.B., 9
F.3d 218, 223 (2d Cir. 1993) (listing as one of several similarities in conditions of
employment).
157 See N.L.R.B. v. Stevens Ford, Inc., 773 F.2d 468, 473 (2d Cir. 1985) (stating
similarity of skills and functions is criteria used to determine whether employees should
be accreted into unit); see also Jos. Schlitz Brewing Co., 192 N.L.R.B. 553, 554 (1971)
(applying factor of "shared responsibility for and participation in operation of the
equipment" to decide production and maintenance employees constitute a unit). But see
Beacon Photo Serv., Inc., 163 N.L.R.B. 706, 707 (1967) (finding although work was same
at both plants, accretion was not appropriate to existing unit).
158 See N.L.R.B. v. Chicago Health & Tennis Clubs, Inc., 567 F.2d 331, 331 (7th Cir.
1977) (determining appropriate bargaining unit by contrasting Chicago Health and
Tennis and Saxon Paint workforces); Pullman Indus., 159 N.L.R.B. 580, 582 (1966)
(finding that because this factor was lacking and second plant was completely
autonomous, this tended to establish there was no accretion to contracting unit); see also
Appropriateness of Requested Single Location Bargaining Units in Representation Cases,
60 Fed. Reg. 50146 (proposed September 28, 1995) (to be codified at 29 C.F.R. pt. 103)
(denying N.L.R.B. litigation-reducing proposal to make single-location units appropriate
bargaining unit without regard to employee relationships).
159 See N.L.R.B. v. Local Union 103, 434 U.S. 335, 339-41 (1978) (ruling that strong
history of bargaining amongst one location's employees does not command employer
obligation for another's); N.L.R.B. v. Metro. Life Ins. Co., 380 U.S. 438, 441-44 (1965)
(instructing N.L.R.B. not to blindly rely on extent to which employees have organized
when determining proper bargaining unit); Aerojet-Gen. Corp., 185 N.L.R.B. 794, 797
(1970) (looking to bargaining history and lack of contact with unit members to deny
ST JOHNIS JOURNAL OFLEGAL COMMENTARY
[Vol. 16:489
4. Three Different Groups at the Bargaining Table
The Board failed to properly address the practical problems of
forcing two employers to bargain together with a divided union
regarding terms and conditions of employment. 160 In his
dissenting opinion, Member Brame, addressed this concern
arguing, "coercing combined bargaining by the joint employers
and the sole employer will highlight and exacerbate any
conflicting interests between these two employing entities and
create new conflict."161 The majority did not give any guidance as
to how the union, the supply employer and the user employer
should engage in collective bargaining.162 Rather, they dismissed
Member Brame's contention by stating that the only requirement
is for the union to negotiate with the jointly employed employees
to the extent that they each control the employees' conditions of
employment.1 63
5. Elimination of Temps
According to Charles Craver, a labor relation's expert, Sturgis
accretion).
160 See Dona A. Nutini, N.L.R.B. Expands OrganizingI'ghtsto Temporary Workers,
ARiz. EMP. L. LETTER, Nov. 2000 (providing advice for uncertain employers facing
Sturgis-like situations); Prepared Testimony of G. Roger King Jones, Day, Reavis &
Pogue on Behalf of the Society for Human Resource Management, FED. NEWS SERVICE,
Sept. 19, 2000 (depicting substantial problems and some questions for both supplying
employer and user employer that were not addressed by Board's decision). See generally
Bonanno Linen Serv. v. N.L.R.B., 454 U.S. 404, 412 (1982) (stating members of multiemployer bargaining units may, with limitations, unilaterally withdraw due to impasse).
161 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *121 (dissenting opinion); see also N.
Am. Soccer League v. N.L.R.B., 613 F.2d 1379, 1383 (5th Cir. 1980) (distinguishing
professional soccer league from building owners in Greenhoot). But see S.S. Kresge Co. v.
N.L.R.B., 416 F.2d 1225, 1231-32 (6th Cir. 1969) (stating that despite divergent interests,
chance of serious conflict resulting was speculative).
162 See N.L.R.B. Opens Door to Union Organizingby Temporary Workers, supra note
14 (outlining problems of new rule); see also Derrick, supra note 52, at 17 (highlighting
management's perspective on how to prepare for union efforts in organizing temporary
workers); Nancy Schiffer, Organizing Contingency Workers: Community of Interest v.
Consent, 17 LAB. LAW. 167, 180-81 (2001) (concluding from union's perspective that some
temporary employees rights were gained in Sturgis, but questions of bargaining
obligations still must be sorted out).
163 See Sturgis,2000 N.L.R.B. LEXIS 546, at *45 (stating that despite any absence of
employment relationship between supplier and employer, they are still able to bargain to
extent of supplier controls terms and conditions of jointly owned employees); see also W.
Temp. Servs. v. N.L.R.B., 821 F.2d 1258, 1265 (7th Cir. 1987) (finding user employer and
supplier need only negotiate with union over jointly owned employees to extent they
control conditions of employment); S.S. Kresge Co., 416 F.2d at 1231 (rejecting similar
challenges that dissent in Sturgis presented, and stating that whether collective
bargaining process would be disrupted because independent ideas of joint employers were
speculative). See generally Gallenkamp Stores v. N.L.R.B., 402 F.2d 525, 531 (9th Cir.
1968) (noting employers had worked out problems before to meet needs of joint enterprise,
and like efforts would be effective when bargaining with unions).
2002]
TEMPORARY WORKERS ALLO WED TO JOIN T E UNIONS
519
"will create disincentive to use outside workers." 164 If the union
demands higher pay and benefits for temporary employees
accreted into a unit this will raise employer's cost and the
temporary industry will suffer the effects. This decision may
have harmful effects through increased production cost and may
force companies to pay their temporary workers more than they
had contractually agreed with temporary staffing agencies.165 If a
company chooses to eliminate temporary employees from their
workforce, it may result in an unfair labor practice unless the
company asserts a sound business reason. 166 A sound business
reason may be easy to justify considering that many employers
pay temporary employees less than regular employees.167
6. Greater Backlog for the NLRB
The decision will probably create a greater backlog at the
administrative level because there will be an increasing number
of representation hearings. 168 Before this case was decided there
was already concern at the congressional level regarding how
long it took for cases to be investigated, considered and
164 See Labor Temps Win Right to Unionize, FACTS ON FILE WORLD NEWS DIG., Aug.
30, 2000, at 650A3 (quoting Charles Craver's view that companies may lose financial
benefits of hiring temps); see also Michael D. Goldhaber, Is N.L.R.B. in a Pro-Labor
Mood?, NA'L L.J., Oct. 9, 2000, at B1 (referring to statements made by Charles Craver
where he responded to N.L.R.B. Sturgis ruling as response to emergence of temps as
large, permanent part of workplace); Greenhouse, supra note 110, at A16 (quoting
Charles Craver that there will be "less incentive" to use outside workers).
165 See Goldhaber, supra note 164, at B1 (commenting both pro-labor and
independent observers argue that Sturgis was "no home run" for unions); Greenhouse,
supra note 110, at A16 (stating many business groups criticized ruling because it may
force companies to pay temp workers more than they contracted for); Labor: Temps Win
Right to Unionize, supra note 164, at 650A3 (reporting many employers criticized Sturgis
decision).
166 See NATL LABOR RELATIONS BD., A GUIDE TO LAW AND PROCEDURES UNDER THE
NATIONAL LABOR RELATIONS ACT 2 (rev. ed. 1997) (noting company may avoid unfair
labor practice if it states sound business reason for practice). See generally Kiesling,
supra note 81, at 1 (stating temporary workers present issue whether "on-site employer"
can be held liable for violations of temp's Title VII rights).
167 See Kiesling, supra note 81, at 2 (noting temporary employees work for lower
wages and fewer benefits saving employer significant costs); Summers, supra note 97, at
510 (stating temp workers receive wages twenty percent lower than permanent workers
performing similar work); see also McClain, supra note 95, at G1 (reporting small
percentage of temporary employees receive benefits); Rahebi, supra note 19, at 1111
(stating temporary work is characterized by low pay and reduced benefits).
168 See N.L.R.B.: House Subcommittee Chair Questions Board Decisions, supra note
109 (reporting on Representative John Boehner's position that N.L.R.B. should
concentrate on reducing backlog and not expanding it further); see also WiWi NL.R.B. 's
Recent Sturgis Ruling Help or Hurt OrganizingBargaining supra note 109 (citing John
S. Irving, former N.L.R.B. general counsel, as stating that Sturgis complicates things and
creates potential to delay election process).
STJO-N'SJOURNAL OF LEGAL COMMENTARY
[Vol. 16:489
completed.169 This decision will only add to the problem. 170 There
will be more hearings to determine whether a joint employer
exists, and if that answer is in the affirmative, then another set
of hearings will be held to determine whether a "community of
interest" exists between such joint employers.171
Although there is considerable backlog at the administrative
level, the Board is not to blame. 7 2 Representative Dale Kildee, a
Michigan Democrat, defended the NLRB on September 19, 2000
at the hearing regarding the change in precedent.1 7 3 He
identified the problem, pointing out that in the late 1990's
Congress did not provide the agency with adequate funding to
reduce the case backlog to a reasonable level. 174 Last year,
169 See Drew Douglas, Liebman Says Reducing Delays, Maintaining Workplace
Relevance are N.L.R.B. 's Challenges,DAILY LAB. REP., Mar. 24, 2000 (reporting lengthy
case backlogs represent major challenges to N.L.R.B.); Susan J. McGolrick, Truesdale
Reflects on Tenure as Chairman:DiscussesFactors that Affect Case Backlog,DAILY LAB.
REP., Nov. 16, 1999 (stating N.L.R.B. focused on issuing decisions for older pending cases
in attempt to reduce backlog of old cases); Rick Valliere, N.L.R.B.: Truesdale Says
Cleaning up Caselog First Priorityin Fourth Term on Agency, DAILY LAB. REP., Aug. 3,
1999 (citing chairman Truesdale's agenda to reduce backlog of old cases in his fourth
appointment of N.L.R.B.); see also Will N.L.R.B. 'sRecent Sturg's Ruling Help or Hurt
OrganizingBargaining, supra note 109 (referring to attorney J. Hamilton Stewart who
recognized Sturgis ruling will create "lots of litigation").
170 See N.L.R.B.: House Subcommittee Chair Questions Board Decisions, supra note
109 (discussing backlog); see also Sturgis,2000 N.L.R.B. LEXIS 546, at *43 (exemplifying
how case returns back for another hearing to determine community of interest of joint
employers); Will N.L.R.B. 's Recent Sturgis Ruling Help or Hurt OrganizingBargaining,
supra note 109 (outlining Jeffboat's attorney's plan for another hearing to determine
whether temps share community interest with regular employees, and then going to
N.L.R.B. for second ruling).
171 See Sturgis,2000 N.L.R.B. LEXIS 546, at *43 (exemplifying how case returns back
for another hearing to determine community of interest of joint employers); Will
N.L.R.B. 's Recent Sturgis Ruling Help or Hurt OrganizingBargainingZ supra note 109
(explaining that John S. Irving, former N.L.R.B. general counsel, believes that this will
create more legal issues before representation election because hearings are necessary to
determine status of joint employer and community of interest standard).
172 See Douglas, supra note 169 (noting hostility of Congress towards N.L.R.B. and
blaming small budget for inability to hire, unprecedented turnover, long vacancies, and
inability to train current N.L.R.B. workforce); McGolrick, supra note 169 (citing high
turnover, short recess appointment and budget cuts as factors impacting case backlog);
N.L.R.B.: House Subcommittee Chair Questions Board Decisions, supra note 109
(reporting James B. Coppess observation of low funding, insufficient staff, and high board
turnover); Valliere, supra note 169 (discussing Truesdale attributing backlog to budget
cuts and appointment delays).
173 See N.L.R.B.: House Subcommittee Chair Questions Board Decisions, supra note
109 (reporting Representative Dave Kildee's advocacy of N.L.R.B. and noting Congress
did not approve adequate funding to reduce case backlog).
174 See id. (noting Representative John Tierney, Democrat from Massachusetts,
agreed with Kildee, saying that it is Congressional practice to cut budget and then
complain that agency is not performing up to par); see also Douglas, supra note 169
(finding hostility of Congress towards N.L.R.B. and blaming small budget for inability to
hire, unprecedented turnover, long vacancies, and inability to train current N.L.R.B.
2002]
TEMPORARY WORKERSALLOWED TOJOIN TE UNIONS
521
Congress gave the Board more than a $20 million dollar funding
increase, and there is hope for the future, because the House and
Senate approved a 5.2% increase for the 2001 fiscal year.17 5
C. Parallel Situations
Another recent decision that will further impact the use of
temporary workers is Microsoft v. VizCaino.176 After a decade of
appeals, the 9th Circuit decided Vizcaino last year, ultimately
giving temporary employees the same compensation as their
permanent counterparts.1 7 7 This case can be analogized to the
Sturgis decision by the way the Court of Appeals rejected
Microsoft's pseudo transformation of independent contractors to
temporary employees. 178 The court declared Microsoft a coworkforce); McGolrick, supra note 169 (citing high turnover, short recess appointment
and budget cuts as factors impacting case backlog); Valliere, supra note 169 (reporting
Truesdale attributing backlog to budget cuts and appointment delays).
175 See Michelle Amber, Administration Seeks $10 Million Increase for NL.R.B. in
Fiscal2001 Budget Request DAILY LAB. REP., Feb. 8, 2000 (discussing 2001 increased
funding for N.L.R.B.); Deborah Billings & Dean Scott, Appropriations:House Senate
AppropriationsMark up to FY 2001 Labor- HS Spending Measures, DAILY LAB. REP.,
May 11, 2000 (stating house bill would fund N.L.R.B. at current level, but Senate bill
would meet request for $216 million); Susan J. McGolrick, NL.R.B.: House
Appropriations Give NL.R.B. Officials Positive Reception on FY 2001 Proposal,DAILY
LAB. REP., Mar. 29, 2000 (noting N.L.R.B. seeks 5.2% increase above fiscal year 2000);
N.L.R.B.: House Subcomittee Chair Questions Board Decisions OverturningPrecedent
supra note 109 (describing improvements in N.L.R.B. hiring, performance and training
during fiscal year 2000 as result of increased funding).
176 See Vizcaino v. Microsoft Corp., 97 F.3d 1187, 1189 (9th Cir. 1996) (holding that
temporary employees are entitled to same benefits and stock options as common-law
employees under Microsoft's Employee Stock Purchase Plan and Microsoft's Savings Plus
Plan); Mary Clare Gartland, Independent Contractorsand Qualifying CorporatePension
Plans Under the Employee Retirement Income SecurityAct after Vizcaino v. Microsoft, 49
CATH. U. L. REV. 505, 507-08 (2000) (discussing impact of decision on companies use of
temporary workers); Joe Sonneman, Equal Pay & Benefits for Temps & Part-timers?,23
AK BAR RAG 8, 8 (1999) (noting Ninth Circuit's agreement with Microsoft's "common law
employees" and allowing them to participating in stock purchase plan); Steven
Greenhouse, Joe Hill in High Tech: A Special Report; Unions Needs Not Apply, N.Y.
TIMEs, Jul. 26, 1999, at C1 (commenting on temp workers at Microsoft need for union
representation where they have no job security or stock options).
177 See Vizcaino, 97 F.3d at 1189 (pointing out that Microsoft avoided payment of
employee benefits to increase profits by hiring temporary employees as independent
contractors); Paul Kellogg, Independent Contractoror Employee: Vizcaino v. Microsoft
Corp., 35 HOUS. L. REV. 1775, 1778-79 (1999) (noting IRS ruling that Microsoft's
independent contractors were in fact common law employees); James G. McMillan, III,
Comment: Misclassification and Employer Discretion under ERISA, 2 U. PA. J. LAB. &
Emp. L. 837, 837 (2000) (stating 91h Circuit found Microsoft has misclassified employees as
independent contractors in order to deny them benefits); Someman, supra note 176, at 8
(discussing various terms for temporary workers including Microsoft case and
"independent contractors").
178 See Vizcaino, 97 F.3d at 1189 (giving temporary workers stock options under
Microsoft's Employee Stock Purchase Plan and saving benefits under Microsoft's Savings
Plus Plan); Jeffrey N. Gordon, Employees, Pensions and the New Economic Order, 97
COLUM. L. REV. 1519, 1531 (1997) (stating that Congress has declined to pass legislation
to allow laborers to unionize). See generally Mark Berger, The Contingent Employee
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employer with its supply agency and required Microsoft to
provide the workers with stock-option benefits. 17 9 The outcome of
this decision forced Microsoft to compensate about 10,000
temporary workers who were originally not allowed to join the
company's stock-purchase program.18 0
Prior to this case the Internal Revenue Service determined
that Microsoft's independent contractors were actually employees
for tax purposes.IS1 In turn, Microsoft changed the status of the
independent contractors to temporary employees by requiring
them to become associated with employment agencies. 8 2 The
Benefits Problem, 32 IND. L. REV. 301, 301-06 (1999) (noting costly benefits such as
pensions, stock options, and medical insurance plans have historically only been enjoyed
by "traditional employees," and not contingent contract or temporary employees); Renate
M. de Haas, Employee Beneftts: Viscaino v. Microsoft, 13 BERKELEY TECH. L.J. 483, 48386 (1998) (describing how Vizcaino changed landscape for previously exploited contract
workers and temporary workers).
179 See Vizcaino, 97 F.3d at 1191 (explaining various employee benefits); de Haas,
supra note 178, at 488 (stating that 9th Circuit concluded that ERISA guidelines entitled
all persons employed by Microsoft and paid from its United States accounts to participate
in stock purchase plan, regardless of whether they were paid through payroll accounts or
accounts receivable); Gartland, supra note 176, at 518-19 (discussing 9th Circuit holding
that Vizcaino plaintiffs should be allowed to reap benefits of stock purchase plan);
Kellogg, supra note 177, at 1785 (asserting that 9th Circuit holding temporary employees
were eligible to participate in stock purchase plan decided an ambiguously phrased
provision in favor of Vizcano plaintiffs).
180 See de Haas, supranote 179, at 488 (stating that after many appeals, 9th Circuit
decided that "all persons employed by Microsoft and paid from its United States accounts
[could] participate in [Stock Purchase Plan]"); Richard J. Freddo, Contingent Workers: A
Full-Time Job for Employers, Benefit Plan Admimstrators and the Courts, 52 SMU L.
REV. 1817, 1823 (1999) (explaining that Microsoft I proclaimed employees were
misclassified as independent contractors, and many brought action against Microsoft to
recover their denied employee benefits); Gordon, supra note 178, at 1531-32 (discussing
that despite growth of contract and temporary workers in labor market, legislators have
not sought to protect such employees even if they work substantially full time); Jessica
Guynn, Microsoft Case Sets New Rules for Treating Temps, CONTRA COSTA TIMES, Dec.
19, 2000 (reporting Microsoft's settlement of $96.9 million dollars for denying benefits to
these temporary employees).
181 See Vizcaino, 97 F.3d at 1190 (outlining that examination of Microsofts
employment records in 1989 and 1990 showed "Microsoft's freelancers were not
independent contractors, but employees for withholding taxes and the employer's portion
of Federal Insurance Contribution Act tax."); de Haas, supra note 178, at 486 (stating that
Vizcaino held that because Microsoft had substantial control over the working conditions
of its temporary workers, the IRS determined that the workers were employees and not
independent contractors); Kellogg, supra note 177, at 1779 (asserting that "for Microsoft,
the fateful evolution of its employees was complete when the Internal Revenue Service...
ruled that the company's independent contractors were in fact common law employees.").
See generallyGartland,supranote 176, at 505-06 (describing right-to-control test used by
IRS to determine whether worker is independent contractor).
182 See Vizcaino, 97 F.3d at 1191 (answering IRS ruling by changing some of
independent contractors into permanent positions while giving others option of
terminating their employment or to continue but only with temporary agency); Gartland,
supra note 176, at 518 ( noting that after complying with the IRS decision, Microsoft
changed its system for the freelance workers and offered some freelance workers
permanent employee positions, and rest opportunity to work for temporary employment
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TEMPORAR Y WORKERS ALLO WED TO JOIN THE UNIONS
523
plaintiffs were comprised of individuals who opted against
Microsoft's policy change and sued for their pension and welfare
benefits.183 The plaintiff class argued that they were common
law employees and were allowed the same benefits as their
permanent counterparts.184 Microsoft's main argument was
contingent on the fact that these employees signed an
independent contractor agreement expressly providing that they
were responsible for their own benefits. 185
The Court of Appeals disagreed with Microsoft and relied on
Microsoft's treatment of the workers, not on its classification.186
agency that supplied workers to Microsoft on as-needed basis); Philip D. Hixon,
Contingent Workers and ERISA: Should the Law Protect Workers with No Reasonable
Pension Expectations?, 25 OKLA. CITY U. L. REV. 667, 689 (2000) (stating that Microsoft
engaged in practice of "converting" its freelance employees to either traditional
employees, ending employment, or working for an employment agency); Kellogg, supra
note 177, at 1781 (discussing after IRS decision, contingent employees were given options
terminating their employment or working for "a newly created temporary employment
agency" that paid employees, but withhold their federal taxes, and paid its share of FICA
taxes).
183 See Vizcaino, 97 F.3d at 1191 (answering IRS ruling by changing some
independent contractors into permanent positions while giving others option of either
terminating their employment or continuing only with temporary agency); Gartland,
supra note 176, at 518 ( explaining Microsoft's conversion of complying with IRS decision,
freelance workers by either becoming permanent workers or becoming employed by
temporary employment agency that supplied workers to Microsoft on as-needed basis);
Philip D. Hixon, Contingent Workers and ERISA: Should the Law Protect Workers with
No Reasonable Pension Expectations?, 25 OKLA. CITY U. L. REV. 667, 689 (2000)
(outlining Microsoft's conversion plans for freelance employees to either traditional
employees, giving them choice of ending employment, or working for an employment
agency); Kellogg, supra note 177, at 1781 (discussing option offered to work for "newly
created temporary employment agency" which paid employees but withheld their federal
taxes, and pay its share of FICA taxes).
184 See Vizcaino, 97 F.3d at 1192 (highlighting qualification for benefits under plan
based on stock purchase plan's definition of employee); de Haas, supra note 182, at 484
(stating Vzcaino plaintiffs' claims were based upon theory that plaintiffs were common
law employees); Hixon, supra note 183, at 688 (affirming freelance employees who
brought Viscaino suit against Microsoft were denied benefits of other employees); Kellogg,
supra note 177, at 1780 (noting eight plaintiffs in Vizcaino sued to establish their
eligibility for employee benefits and claimed their alleged misclassification as
independent contractors wrongfully excluded them from participating in various company
benefits).
185 See Vizcaino, 97 F.3d at 1191 (dismissing plaintiffs' argument because they
contractually waived any right to benefits, and were not eligible to receive non-ERISA
benefits); de Haas, supra note 178, at 484 (asserting Vigcaino plaintiffs signed
employment agreements providing they were responsible for paying their own insurance
and benefits); Hixon, supra note 182, at 706 (arguing that interpretation of contract
between Microsoft and Vizcaino plaintiffs was central issue in case); Kellogg, supra note
177, at 1777 (expounding major issue in Vizcaino case was plaintiffs' signed employment
agreements surrendering all benefits enjoyed by traditional employees).
186 See Viscaino, 97 F.3d at 1194 (interpreting contract as reasonable person of
average intelligence and experience by examining not only its terms but also
manifestations of intent); Kellogg, supra note 177, at 1800 (stating employees that
Microsoft classified as "freelancers" actually fulfilled functions of traditional employees).
See generally Hixon, supra note 182, at 1785 (explaining that both parties assented to
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Although Microsoft did take steps in preventing these workers
from being defined as employees, this did not preclude the court
from granting common law employee status.I8 7 Microsoft used
the same tactics to avoid employee
status as the
recommendations of lawyers did to avoid the community of
interest standard.l8 8 This decision exemplifies how the court will
assert the true intentions of the parties by examining multiple
8 9
facets before rendering an opinion.1
IV. Future for Temporary Employees
The Sturgis decision had merit, but there are still a number of
substantial questions and problems for both the supplying
employer and user employer.19 0 Unfortunately, the Court of
agreement which precluded freelancers from obtaining employee benefits); Ninth Circuit
Finds That MisclassiFied Employees Are Eligible for Federally Regulated Employee
BeneFits, 111 HARv. L. REV. 609, 613 (1997) (describing how Vizcaino court imputed
Microsoft with intent to avoid unlawful conduct, despite fact that many corporations
intentionally include "no benefits" clauses in contracts of misclassified, temporary or
contract employees to limit overhead costs).
187 See Cmty. Bob-Violence v. Reid, 490 U.S. 730, 751-52 (1989) (outlining factors to
determine who qualifies as employee); Ninth Circuit Finds That MisclassifiedEmployees
Are E7ble for Federally Regulated Employee Benefits, supra note 186, at 613 (stating
9th Circuit interpreted Microsoft's involvement in questionable employment agreements
was mistake rather than intentional avoidance of law). But see Kellogg, supra note 177,
at 1805 (proposing that 9th Circuit should have honored employment contracts made by
Microsoft and its freelancers, and not have inferred benefits when both parties had not
assented to such arrangement).
188 See Vizcaino, 97 F.3d at 1189 (recognizing problems with large corporations
avoiding payment of employee benefits by hiring temporary workers or independent
contractors); Hixon, supra note 182, at 684 (stating that misclassification of independent
contractors is common and often deliberate by employers to avoid payroll taxes and
federally mandated work-related benefits, such as unemployment benefits and workers'
compensation"); Ninth Circuit Finds That Misclassified Employees Are Eligible for
Federally Regulated Employee Beneflts, supra note 186, at 613 (realizing that many
corporations knowingly take advantage of vague area of law to avoid obligations incident
to employment relationship like benefits). But see Kellogg, supra note 177, at 1805
(arguing generally that courts should not interfere with right of corporations and
contingent workers to contract freely regarding employment agreements and should not
infer rights into contracts that are absent).
189 See Vircaino, 97 F.3d at 1190-1200 (concluding Microsoft misrepresented
plaintiffs' actual employment status and benefits eligibility premised upon examining IRS
viewpoint, qualifications of common-law employee, and reading contract in light of rule
contra proferentum); de Haas, supra note 178, at 497 (stating language of employment
agreements is only one factor considered when deciding whether both parties "truly
intend" worker to be traditional employee with benefits or contractor); Hixon, supra note
182, at 684 (asserting misclassification of independent contractors is common and often
deliberate).
190 See Furfaro & Josephson, supra note 11 (outlining uncertainties Board left in
Sturgis decision including: accretion of temporary workers into existing bargaining units,
procedure for conducting collective bargaining negotiations involving multiple employers
with responsibilities to different employees, and when and if temporary employees will
have sufficient community of interest with regular employees to warrant inclusion of two
groups in single unit).
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TEMPORARY WORKERSALLO WED TOJOIN THE UNIONS
525
Appeals may never get to address this particular case1 91 because
it has been remanded to the Board to determine the community
of interest. 192 Since neither M.B. Sturgis nor Interim objected to
being a joint employer, there is a good chance that this case will
not go any further.19 3 As for Petitioner Jeffboat, who objected to
the joint employer status along with TT&O, this case is being
"remanded to the Regional Director to determine whether the
TT&O supplied employees are an accretion to the contractual
bargaining unit, including the consideration of Jeffboat's other
contentions for dismissing the petition which were held in
abeyance for our consideration of the Lee Hospital and joint
employer issues." 194 As a result, the only way for Jeffboat to
obtain appellate review is to refuse to bargain with a certified
union. 195 The Board would then have to rule that Jeffboat
committed an unfair labor practice.196 This could take years
before the appeals court examines the underlying ruling. 197 Even
if this case does reach the federal court system, it is very difficult
to secure a reversal on the merits of a Board's decision.19 8
191 See ARCHIBALD COX ET AL., LABOR LAW 303-4 (12th ed. 1996) (stating that NLRA
has no provision for direct judicial review of Board determinations, however Section 9(d)
does certify federal courts when aggrieved party commits unfair labor practice); see also
Leedom v. Kyne, 358 U.S. 184 (1958) (exploring Congress' reluctance to provide for direct
judicial review of representation decisions).
192 See Sturgis, 2000 N.L.R.B. LEXIS 546, at *43 (remanding case to Regional
Director who failed to determine this issue previously).
193 See Sturgis at *5-6 (indicating neither party's objection as to joint employer status
classification); see also Rahebi, supra note 19, at 1107 (noting debates still exist about
what standard to apply when determining joint employer status).
194 Sturgis, 2000 N.L.R.B. LEXIS 546, at *58. See Rahebi, supra note 19, at 1125
(discussing Jeffboat's argument against joint employer status).
195 See 29 U.S.C. § 8(a)(5) (2000). See generallyDuffy Tool & Stamping v. N.L.R.B.,
233 F.3d 995, 995 (7th Cir. 2000) (obtaining appellate review of N.L.R.B. decision over
duty to bargain over employer unilaterally instituting no-fault attendance policy);
McClatchy Newspapers v. N.L.R.B., 131 F.3d 1026, 1026 (D.C. Cir. 1997) (attaining
appellate review of N.L.R.B. decision over duty to bargain over merit pay).
196 See A Guide to Basic Law and Proceduresunder the NationalLabor RelationsAct
supra note 10 (explaining duty of employers to bargain collectively); see also 29 U.S.C. §
8(a)(5) (2000); Linden Lumberm Div., Summer & Co. v. N.L.R.B., 419 U.S. 301, 311 (1974)
(Stewart, J., dissenting) (stating it is unfair labor practice for employer to refuse to
bargain with his employee's representative).
197 See Am. Totalisator Co., Inc., 243 N.L.R.B. 314, 315 (1979) (citing N.L.R.B.'s
"current backlog of work and inability to resolve issues promptly" as reasons for declining
jurisdiction); Doug Brownstone, The NationalLabor Relations Board at 50: Politicization
Creates Crisis, 52 BROOK. L. REV. 229, 264 (1986) (stating N.L.R.B. is facing its largest
backlog in history); McGorlick, supra note 109 (discussing backlog of N.L.R.B.).
198 See Beth IsraelHosp. v.N.L.R.B., 437 U.S. 483, 501 (1978) ("[Tlhe judicial role is
very narrow: The rule which the Board adopts is judicially reviewable for consistency with
the Act and for rationality, but if it satisfies those criteria, the Board's application of the
rule, if supported by substantial evidence on the record as a whole, must be enforced.");
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Although there is heated debate over the choice in overruling
precedent, the Court of Appeals should not reverse the Board's
decision.199 It is evident that there are multiple shortcomings in
the Sturgis holding, the overall decision is conducive to the
changing contemporary structural makeup of the American
employee. 20 0 Accordingly, the Board needs to address these
problems in their upcoming cases to ensure a peaceful transition
in the workforce. 20 1 Through Board decisions, both the
boundaries of a joint employer and the application of the
community of interest standard will become clearer. 202 At the
same time, Congress needs to continue providing adequate
funding so the Board does not get too backed up with cases. 2 03
Most importantly, the Board needs to strictly adhere to the
Brownstone, supra note 197, at 246 (indicating N.L.R.B. decision will be upheld if
reasonable and supported by record). But see N.L.R.B. v. Chicago Health & Tennis Clubs,
Inc., 567 F.2d 331 (7th Cir. 1977) (demonstrating that courts do not look to make sure
that Board is not making arbitrary decisions).
199 See Brownstone, supra note 197, at 243 (suggesting reversal of N.L.R.B. decisions
has correlated directly with changes in Board composition resulting from changing
political climate); Goldhaber, supra note 128 (outlining specific overturns in labor law
within past year).
200 See Rahebi, supra note 19, at 1133 (suggesting Sturgis decision will benefit
temporary workers, who have become a marginalized segment of American workplace);
Megan Mulholland, NationalLabor Officials Make Changes in Interpretationof Labor
Relations Act, POST-CRESCENT, Oct. 16, 2000 (quoting president of AFL-CIO, David
Newby, "American labor law gives workers fewer rights than labor laws in any other
industrialized country. We only need rulings which reinforce the basic rights of workers
but we also need changes in the labor law itself that gives workers the protections they
need.").
201 See Am. Bread Co. v. N.L.R.B., 411 F.2d 147, 155 (6th Cir. 1969) (promoting peace
and tranquility as one objectives of National Labor Relations Act); Leonard Bierman &
Rafael Gely, The Need For Real Striker Replacement Reform, 74 N.C. L. REV. 813, 827
(1996) (noting NLRA's objective of industrial peace). See generallyA Guide to Basic Law
and Procedure under the National Labor Relations Act, supra note 10, at 26-29
(discussing N.L.R.B.'s general objective of promoting good faith between workforce and
employers).
202 See Aimable v. Long & Scot Farms, 20 F. 3d 434, 443 (11th Cir. 1994) (discussing
determination of joint employer status on case by case basis); Sturgis, 2000 N.L.R.B.
LEXIS 546, at *42 (holding that community of interest will be decided on case by case
basis); Leigh Ann Flavin, The Thomas-Davis Cases: The AppropriatenessofPhysiciansas
Bargaining Units and the Possible Implications for Insurance Companies under the
NationalLabor RelationsAct, 30 ARIZ. ST. L.J. 811,825 (1998) (noting Board will have to
conduct case by case analysis to determine existence of joint employer).
203 See McGorlick, supra note 169 (recognizing need for Congress to continue to
provide increasing funds to N.L.R.B.). But see John G. Adam, Achieving Compliance with
N.L.R.B.-Ordered Remedies, 75 U. DET. MERCY L. REV. 323, 324 (1998) (stating that
N.L.R.B. budget has been slashed by 17.8% since 1985); James A. Gross, The Kenneth M.
Piper Lecture: The Broken Promises of the National Labor Relations Act and the
OccupationalSafety and Health Act: Conflicting Values and Conceptions of Rights and
Justice, 73 CHI.-KENT. L. REV. 351, 360 (1998) (stating Congressional opponents of
N.L.R.B. have in recent years cut funds).
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TEMPORARY WORKERSALLOWED TO JOIN THE UNIONS
527
policy of accretion as they have in the past.20 4 It is not fair that
temporary employees are forced to comply with contract
obligations set by their permanent counterparts. 205 It is obvious
that temporary employees have substantively and procedurally
different needs than the regular employees. 20 6 One of the main
objectives of the NLRA is to promote peace and tranquility
between the parties, while affording employees the opportunity
to be represented by the union of their choice. 207As a result, this
argument fails unless the Board decides to depart from precedent
208
once again when deciding this issue.
Conclusion
The Sturgis decision highlights the ongoing changes in our
society. Temporary workers are no longer a rarity as they
compose a significant segment of the working world. As a result,
they deserve the protections of the NLRA, which Sturgis provides
for them. The majority of the Board members overruled Lee
Hospital, enabling joint employees to be represented in a
bargaining unit with employees, who are solely employed by the
user, without consent of both parties. Although Sturgis failed to
provide a workable framework in applying the decision, in the
long term these are only small bumps that will be smoothed over
204 See generally Towne, 270 N.L.R.B. 311, 311-12 (1984) (exemplifying policy of
Board); MacTowing, 262 N.L.R.B. 1331, 1334 (1982) (exemplifying Courts adherence to
policy of accretion); Save-It-Discount Foods, 263 N.L.R.B. 689, 693-95 (1982)
(exemplifying the same).
205 See Greenhouse, supra note 148 (explaining unfairness of accreting contract
because permanent and temporary employees have different interest); McGorlick, supra
note 109 (noting temporary employees are commonly subject to coverage by bargaining
agreements without having opportunity to opt for or against representation); Sukert,
supra note 79, 439 (2000) (claiming temporary worker is vulnerable because he is not
party to indeterminate contact).
206 See generally Ihejirika, supra note 14, at C16 (discussing fact that some
temporary employees prefer flexibility that temporary work provides); McClain, supra
note 95, G1 (stating typical contingent workers special need for legal representation; U.S.
to Hire Temporaties to Cut Costs, supranote 101 (noting that temporary employees have
significantly fewer rights and receive less benefits).
207 See Am. Bread Co., 411 F.2d 147, 155 (6th Cir. 1969 (promoting peace and
tranquility as one objective of National Labor Act); Bierman & Gely, supra note 201, at
827 (noting NLRA's objective of industrial peace); See generallyA Guide to Basic Law and
Proceduresunder the NationalLabor Relations Act, supra note 10, at 26-29 (discussing
N.L.R.B.'s general objective of promoting peace between parties and giving examples of
violations).
208 See generally Ihejirika, supra note 14, at C16 (commenting that some temporary
employees prefer flexibility that temporary work provides); McClain, supra note 95, G1
(discussing typical contingent workers special need for legal representation; US to Hire
Temporaries to Cut Costs, supra note 101 (noting that temporary employees have
significantly fewer rights and receive less benefits).
528
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time. The Court of Appeals, therefore, should affirm the Sturgis
decision.